Summary
In Freeman, the defendant was convicted of driving while intoxicated and driving while intoxicated, per se, as a class E felonies.
Summary of this case from People v. HardnettOpinion
11-10-2016
The PEOPLE of the State of New York, Respondent, v. Christopher J. FREEMAN, Defendant–Appellant.
Leanne Lapp, Public Defender, Canandaigua (Cara A. Waldman of Counsel), for Defendant–Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Melanie J. Bailey of Counsel), for Respondent.
Leanne Lapp, Public Defender, Canandaigua (Cara A. Waldman of Counsel), for Defendant–Appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Melanie J. Bailey of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DeJOSEPH, AND SCUDDER, JJ.
MEMORANDUM:Defendant was convicted of driving while intoxicated as a class E felony (Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i][A] ) and driving while intoxicated, per se, as a class E felony (§§ 1192[2] ; 1193 [1][c][i][A] ). The court initially imposed a sentence of two concurrent terms of imprisonment of one year, to be followed by five years of probation. Defendant served his sentence of imprisonment, and thereafter allegedly committed several violations of the terms and conditions of his probation. Following a hearing, County Court revoked the probation component of defendant's sentence and imposed concurrent, indeterminate terms of imprisonment of 1 ? to 4 years. Defendant now appeals from the judgment associated therewith.
Contrary to defendant's contention, the court “properly determined that the People met their burden of establishing by a preponderance of the evidence that defendant violated the terms and conditions of his probation” (people v. ortiz, 94 a.d.3d 1436, 1436, 942 n.y.s.2d 838, lv. denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 ; see CPL 410.70[3] ; People v. Wheeler, 99 A.D.3d 1168, 1169–1170, 951 N.Y.S.2d 791, lv. denied 20 N.Y.3d 989, 958 N.Y.S.2d 705, 982 N.E.2d 625 ). In addition to other evidence, the People offered testimony from defendant's probation officer and a police officer, both of whom “testified to their direct, personal knowledge of the facts and circumstances surrounding defendant's violation[s] of the terms of probation” (People v. Hogan, 284 A.D.2d 655, 655–656, 728 N.Y.S.2d 216, lv. denied 97 N.Y.2d 641, 735 N.Y.S.2d 498, 761 N.E.2d 3 ).
Finally, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.