ORTIZ, YOKOHIRO VIDAL, PEOPLE v

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

488 KA 10-00830 PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER

YOKOHIRO VIDAL ORTIZ, ALSO KNOWN AS ORTIZ, DEFENDANT-APPELLANT.

JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (HEATHER A. PARKER OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered September 8, 2009. The judgment revoked defendant’s sentence of probation and imposed a sentence of imprisonment.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of assault in the second degree (Penal Law § 120.05 [6]) and criminal mischief in the third degree (§ 145.05 [2]) and sentencing him to concurrent terms of imprisonment. Contrary to defendant’s contention, County Court properly determined that the People met their burden of establishing by a preponderance of the evidence that defendant violated the terms and conditions of his probation (see People v Pringle, 72 AD3d 1629, 1629, lv denied 15 NY3d 855; People v Donohue, 64 AD3d 1187, 1188; People v Bergman, 56 AD3d 1225, lv denied 12 NY3d 756). The People provided the necessary “residuum of competent legal evidence” (Pringle, 72 AD3d at 1630 [internal quotation marks omitted]), and “the decision to revoke his probation will not be disturbed, [absent a] clear abuse of discretion” (Bergman, 56 AD3d 1225 [internal quotation marks omitted]).

Entered: April 20, 2012 Frances E. Cafarell Clerk of the Court