| People v Thomas |
| 2018 NY Slip Op 05377 [163 AD3d 1293] |
| July 19, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mychael Thomas, Appellant. |
The Kindlon Law Firm, PLLC, Albany (Lee C. Kindlon of counsel), for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Garry, P.J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered July 2, 2015, which revoked defendant's probation and imposed a sentence ofimprisonment.
In November 2014, defendant was adjudicated a youthful offender and was sentenced inRensselaer County to five years of probation following his guilty plea to criminal possession of aweapon in the second degree. The charge stemmed from defendant and three codefendants firingshots at a residence. In February 2015, defendant pleaded guilty to attempted criminal sale of acontrolled substance in the third degree in Albany County and was sentenced, as an adult, to fiveyears of probation, with the sentence to run concurrently with the Rensselaer Countysentence.
In May 2015, the Albany County Department of Probation filed two violation of probationpetitions, both alleging that defendant had violated the conditions of his probation by, amongother things, being charged with possessing a weapon on or about April 18, 2015 and violatingcurfew on two occasions. Following a hearing, County Court found that defendant had violatedthe conditions of his probation requiring defendant to observe a curfew and refrain frompossessing any firearms or engaging in illegal activity. County Court thereafter revokeddefendant's probation and resentenced defendant to 1
We affirm. "[A] violation of probation proceeding is summary in nature and a sentence ofprobation may be revoked if the defendant has been afforded an opportunity to be heard and thecourt determines by a preponderance of the evidence that a condition of the probation has beenviolated" (People v Jangrow, 34AD3d 991, 991-992 [2006]; accordPeople v Simpson, 155 AD3d 1246, 1246-1247 [2017]). Defendant's probation officertestified that he reviewed the conditions of probation with defendant, which included that herefrain from committing other crimes or engaging in illegal activity and observe a curfew from9:00 p.m. to 6:00 a.m. The probation officer testified that he met with defendant concerning areport that he was in a car that was stopped by a City of Albany police officer at approximately10:00 p.m. on March 19, 2015 and that defendant admitted to the probation officer that he hadviolated his curfew that night. The probation officer further testified that he visited defendant'sresidence at 9:07 p.m. on May 6, 2015 and defendant did not answer the door.
Regarding defendant being charged with criminal possession of a weapon while onprobation, two City of Albany police detectives testified that they were investigating a series ofshootings between certain residents of the City of Albany and residents of the City of Troy,Rensselaer County, including a shooting that occurred outside a bar in Albany at approximately2:00 a.m. on April 18, 2015. One of the detectives testified that he obtained video footage of theshooting that depicted an individual walking behind the victim with his arm raised and then amuzzle flash coming from his hand. Both detectives testified that defendant identified himself asthe individual in the video that was walking behind the victim, although he denied firing a gun.In light of the foregoing, we find that a preponderance of the evidence supports the finding thatdefendant had violated certain conditions of his probation justifying revocation (see People v Jordan, 148 AD3d1461, 1462 [2017]; People vSoprano, 27 AD3d 964, 965 [2006]). Although it is undisputed that defendant wassubsequently acquitted after a jury trial on the new charge of criminal possession of a weapon,"there is no inherent contradiction between a determination that the defendant violated hisprobation and a verdict acquitting him of the criminal offenses which formed the basis of theviolation, inasmuch as the two matters are subject to different standards of proof" (People vBrown, 268 AD2d 592, 593 [2000], lv denied 94 NY2d 945 [2000]; see People v Ruff, 50 AD3d 1167,1168 [2008]).
We reject defendant's contention that the sentences imposed were harsh and excessive.Defendant was afforded an opportunity to avoid incarceration, but demonstrated an inability tocomply with the terms of probation in the brief time that he was on probation. On the recordbefore us, we find no abuse of discretion or extraordinary circumstances warranting a reductionof the sentences in the interest of justice (see People v Cook, 133 AD3d 1048, 1048 [2015]; People v McQuality, 95 AD3d1369, 1371 [2012], lv denied 20 NY3d 1013 [2013]).
McCarthy, Clark, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.