People v. Gardner

116 A.D.2d 735, 497 N.Y.S.2d 777, 1986 N.Y. App. Div. LEXIS 51587

Opinion

— Appeal by defendant from an amended judgment of the County Court, Nassau County (Santagata, J.), rendered October 26, 1983, vacating a sentence of probation previously imposed as the result of a conviction upon a plea of guilty to attempted burglary in the second degree, adjudicating him in violation of probation, after a hearing, and sentencing him to a nine-month term of imprisonment.

Amended judgment affirmed.

Defendant had failed to keep a total of 24 appointments with his probation officer, a condition of his probation, purportedly due to lack of funds for transportation. The testimony of the probation officer was uncontested, and defendant conceded having missed the meetings. The court found that the meetings missed during periods of employment constituted a violation of the conditions of probation, but found the meetings missed during periods of unemployment were not violations. The findings of violation were based on a preponderance of the evidence (CPL 410.70 [3]). The disparity between the findings for the periods during employment and unemployment was not improper (see, People v Forman, 105 AD2d 984). Lazer, J. P., Mangano, Brown and Lawrence, JJ., concur.