| People v Washington |
| 2016 NY Slip Op 02868 [138 AD3d 1246] |
| April 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vElisha H. Washington, Appellant. |
Donnial K. Hinds, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered May 30, 2014, which revoked defendant's probation and imposed a sentenceof imprisonment.
In 2010, defendant pleaded guilty to attempted robbery in the second degreestemming from his conduct—aided by another person—in forcibly stealingproperty from an acquaintance. Defendant was sentenced to time served, which consistedof six months in jail, and a five-year term of probation was imposed with certainenumerated conditions. In 2014, defendant was arrested in connection with the armedrobbery of a stranger, during the course of which the victim was hit, threatened with agun and had his wallet and other personal items taken from him. Thereafter, a violationof probation petition was filed against defendant, alleging that he had violated fourconditions of his probation—committing new criminal offenses, failing to reportto his probation officer on six separate occasions, using marihuana and possessing aweapon. Following an evidentiary hearing, County Court found that defendant indeedhad violated the cited terms of his probation, revoked his probation and imposed a prisonsentence of five years followed by three years of postrelease supervision. Defendant nowappeals.
Defendant's primary argument upon appeal is that the resentence imposed, which isless than the maximum permissible sentence, is harsh and excessive. We disagree. Therecord reflects that while defendant was given the opportunity to avoid prison inconnection with his 2010 guilty plea to a violent felony, he thereafter failed to complywith several significant terms [*2]and conditions of hisprobation. In addition to his admitted use of marihuana and repeated failures to report,defendant was arrested on serious charges in connection with yet another forciblerobbery. Consequently, notwithstanding certain positive aspects of defendant'sperformance while on probation, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of the resentence in the interest of justice (see People v McGregor, 119AD3d 1235, 1236 [2014], lv denied 25 NY3d 991 [2015]; People v Clark, 100 AD3d1157, 1158 [2012], lv denied 20 NY3d 1010 [2013]).
Finally, to the extent that defendant contends that the underlying violation ofprobation "is not supported by sufficient evidence," we are satisfied—uponreviewing the testimony offered at the hearing—that the People established, by apreponderance of the evidence, that defendant violated the terms and conditions of hisprobation (see People vEggsware, 125 AD3d 1057, 1057-1058 [2015], lv denied 25 NY3d 1162[2015]; People v Pixley,117 AD3d 1102, 1103 [2014], lv denied 24 NY3d 1087 [2014]).Accordingly, the judgment is affirmed.
McCarthy, J.P., Rose, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.