PeoplevColsten

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 2014
• Docket: 106017
• Status: Published

Opinion

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: September 25, 2014 106017 ________________________________

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MEMORANDUM AND ORDER

MICHAEL J. COLSTEN, Appellant. ________________________________

Calendar Date: August 4, 2014

Before: Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ.

__________

Jay L. Wilber, Public Defender, Binghamton (Anthony J. Westbrook of counsel), for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered January 2, 2013, which revoked defendant's probation and imposed a sentence of imprisonment.

In 2011, defendant pleaded guilty to criminal sexual act in the second degree as a result of his engaging in sexual activity with a 13-year-old girl, and he was sentenced to 10 years of probation. Defendant pleaded guilty in 2012 to violating the terms of that probation by, among other things, using drugs, failing to report to his probation officer, failing to find employment and having unsupervised contact with a teenage girl. County Court indicated that it was inclined to resentence defendant to two years in prison to be followed by postrelease supervision of four years and, after considering defendant's arguments for leniency, did so. Defendant now appeals, arguing -2- 106017

solely that the resentence was harsh and excessive. Defendant twice violated the terms of his probation in the brief time that he was on probation, and notably continued to have unsupervised contact with children under the age of 18 notwithstanding that such contact was prohibited. Under these circumstances, we perceive neither an abuse of discretion by County Court nor the existence of extraordinary circumstances that would warrant a reduction of the resentence in the interest of justice (see People v Fitzgerald, 100 AD3d 1268, 1269 [2012], lv denied 20 NY3d 1011 [2013]; People v Baker, 92 AD3d 967 [2012]).

Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court