People v. Van Every

26 A.D.3d 777, 810 N.Y.S.2d 609

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2006
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered April 29, 2003. The judgment revoked defendant’s probation and imposed a term of incarceration.

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

Memorandum: On appeal from a judgment revoking his probation and sentencing him to a term of incarceration, defendant contends that the evidence is legally insufficient to support Supreme Court’s finding that he violated the terms and conditions of his probation. We reject that contention. “The People properly presented the requisite ‘residuum of competent legal evidence’ and thus met their burden of establishing by a preponderance of the evidence that defendant violated the terms and conditions of his probation” (People v Michael J.F., 15 AD3d 952, 953 [2005], quoting People v Pettway, 286 AD2d 865, 865 [2001], lv denied 97 NY2d 686 [2001]). The further contention of defendant challenging the factual sufficiency of the plea allocution underlying the original judgment is not properly before us because, as defendant concedes, he did not appeal from the original judgment (see People v Hall, 5 AD3d 1011 [2004]). Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Gorski and Green, JJ.