| People v October |
| 2020 NY Slip Op 05259 [187 AD3d 1247] |
| October 1, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Desean J. October, Appellant. |
Erin C. Morigerato, Albany, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.),rendered August 28, 2018, which revoked defendant's probation and imposed a sentence ofimprisonment.
In 2017, defendant pleaded guilty to the crime of attempted robbery in the second degree andwas sentenced to five years of probation. Among the various terms and conditions of defendant'sprobation were that he "[a]void any violations of the law" and refrain from consuming orpossessing "illicit drugs." In 2018, a police officer responding to a disturbance at a local hospitalfound defendant to be in possession of a quantity of marihuana and heroin, and defendant wascharged with violating the terms of his probation. Following a hearing, County Court revokeddefendant's probation and resentenced him to a prison term of three years and three years ofpostrelease supervision. This appeal ensued.
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 Peasley, 184AD3d 911, 912 [2020] [internal quotation marks and citations omitted], lv denied 35NY3d 1069 [2020]; accord People vFerry, 171 AD3d 1398, 1399 [2019], lv denied 33 NY3d 1104 [2019]). Here, apolice officer testified that he responded to a report of a disturbance at a hospital and that, uponarrival, hospital personnel identified defendant as one of the individuals involved. Whilespeaking with defendant, the officer in question smelled what he described as the odor of rawmarihuana emanating from defendant and, in response to questioning, defendant admitted that hehad "a little bit of weed on him." After defendant indicated where on his person the substancewas located, the officer recovered a bag from defendant's waistband that contained what provedto be marihuana. During the course of the ensuing search incident to defendant's arrest, theofficer also recovered a quantity of what proved to be heroin. In our view, this testimonyestablished by a preponderance of the evidence that defendant violated the terms and conditionsof his probation by, among other things, possessing illicit drugs (see People v Jordan, 148 AD3d1461, 1462 [2017]).
Defendant's ineffective assistance of counsel claim is unpersuasive. Contrary to defendant'sassertion, the record makes clear that both defense counsel and County Court advised defendantof the ramifications of pursuing a CPL 190.80 motion, in response to which defendant insistedthat counsel proceed. As for counsel's asserted failure to request an updated presentenceinvestigation report, given the brief period of time between that report's preparation and theprobation violation petition, the testimony of defendant's probation officer attesting todefendant's general compliance prior to the violation and the fact that defendant was afforded anopportunity to speak at sentencing, we cannot say that any omission in this regard constituted theineffective assistance of counsel. Finally, we find no extraordinary circumstances or abuse ofdiscretion warranting a reduction of the resentence imposed in the interest of justice (see People v Nolan, 133 AD3d1040, 1041 [2015]). Defendant's remaining arguments, including his assertion that the drugsin question were seized in violation of his 4th Amendment rights, have been examined and foundto be lacking in merit.
Egan Jr., J.P., Mulvey, Aarons and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.