People v. Prial

118 A.D.3d 1498, 987 N.Y.S.2d 788

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 20, 2014
• Status: Published

Opinions

Appeal from a judgment of the Allegany County Court (Thomas E Brown, J.) rendered December 19, 2012. 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 affirmed.

Memorandum: Defendant appeals from a judgment revoking the period of probation imposed upon her conviction of criminal sale of a controlled substance in the third degree and sentencing her to a determinate term of imprisonment. Contrary to defendant’s contention, the sentence is not unduly harsh or severe. Although defendant had no prior felony convictions, she had numerous misdemeanor convictions, and indeed the instant probationary sentence was to run concurrently with another term of probation imposed on one such misdemeanor. Furthermore, following this conviction involving the sale of drugs, defendant repeatedly violated the terms of her probationary sentence by using opiates and other illegal drugs, failed to complete drug programs and to comport with her Drug Court contract, abandoned her children with a relative, and absconded from supervision. Contrary to the dissent, we conclude that “the fact that . . . the codefendant[ ] received [a] lesser [sentence is not germane because] the circumstances surrounding the sentencing of [the codefendant] were different” (People v Purcell, 8 AD3d 821, 822 [2004]; see People v Versaggi, 296 AD2d 429, 430 [2002], lv denied 98 NY2d 714 [2002]; People v Davis, 203 AD2d 818, 818 [1994], lv denied 84 NY2d 824 [1994]).

All concur except Fahey and Sconiers, JJ., who dissent and vote to modify in accordance with the following memorandum.