People v. Misita

26 A.D.3d 815, 808 N.Y.S.2d 884

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2006
• Docket: Appeal No. 1
• Status: Published

Opinion

Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered June 24, 2004. The judgment revoked defendant’s probation and imposed a sentence of incarceration.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment revoking the term of probation imposed upon his conviction of sodomy in the second degree (Penal Law former § 130.45 [1]) and sentencing him to a term of incarceration and, in appeal No. 2, he appeals from a judgment revoking the term of probation imposed upon his conviction of sodomy in the third degree (former § 130.40 [2]) and sentencing him to a term of incarceration. Contrary to the contention of defendant, the People established by a preponderance of the evidence in each appeal that he violated the condition of probation that he have no “unsupervised contact with any children under the age of 17 without the prior permission of the probation officer” (see generally CPL 410.70 [3]). The People presented uncontroverted evidence that defendant drove a 14-year-old boy to local retail stores on two occasions without supervision or the prior permission of his probation officer. Finally, the sentence imposed in each appeal, although the statutory maximum, is not unduly harsh or severe, particularly in view of defendant’s deviant sexual history. Present—Pigott, Jr., P.J., Gorski, Smith, Green and Hayes, JJ.