Opinion
961 KA 22-00111
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Phillip G. MCINTOSH, Defendant-Appellant.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
ROSEMARIE RICHARDS, GILBERTSVILLE, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree ( Penal Law § 220.16 [7] ). County Court initially imposed a term of interim probation supervision (see CPL 390.30 [6] ), but the court revoked the interim probation following a hearing and sentenced defendant to a term of incarceration.
Defendant contends that the court erred in determining that he violated the conditions of his interim probation because, despite the testimony and documentary evidence presented by the People at the hearing, the court should have credited the reasonable explanations he offered during his testimony. We reject that contention. Initially, contrary to defendant's suggestion, "[t]he procedures set forth in CPL 410.70 do not apply where, as here, there has been no sentence of probation" ( People v. Rollins , 50 A.D.3d 1535, 1536, 856 N.Y.S.2d 417 [4th Dept. 2008], lv denied 10 N.Y.3d 939, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] ). Instead, "because interim probation is imposed prior to sentencing, the presentence procedures set forth in CPL 400.10 apply" ( People v. Boje , 194 A.D.3d 1367, 1368, 148 N.Y.S.3d 561 [4th Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 687, 172 N.E.3d 799 [2021] ; see Rollins , 50 A.D.3d at 1536, 856 N.Y.S.2d 417 ). Here, the "hearing conducted by the court was sufficient pursuant to CPL 400.10 (3) to enable the court to ‘assure itself that the information upon which it bas[ed] the sentence [was] reliable and accurate’ " ( Rollins , 50 A.D.3d at 1536, 856 N.Y.S.2d 417, quoting People v. Outley , 80 N.Y.2d 702, 712, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ; see Boje , 194 A.D.3d at 1368, 148 N.Y.S.3d 561 ). Indeed, upon conducting the hearing, the court "possessed sufficient reliable and accurate information to support its conclusion that there was a legitimate basis for the defendant's discharge from [two drug] treatment program[s], and that his failure to successfully complete the program[s and his absence from the county without permission] constituted ... violation[s] of [the] condition[s] of his interim probation" ( People v. Rodas , 131 A.D.3d 1181, 1182, 16 N.Y.S.3d 591 [2d Dept. 2015], lv denied 26 N.Y.3d 1111, 26 N.Y.S.3d 770, 47 N.E.3d 100 [2016] ; see Boje , 194 A.D.3d at 1368, 148 N.Y.S.3d 561 ; see also People v. Lynn , 144 A.D.3d 1491, 1492-1493, 40 N.Y.S.3d 685 [4th Dept. 2016], lv denied 28 N.Y.3d 1186, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017] ). Moreover, defendant was afforded the opportunity to testify to his ostensibly exculpatory explanations and, contrary to his contention, the court was entitled to discredit his version of events and find his excuses insufficient (see People v. Reynolds , 27 N.Y.3d 1099, 1102, 36 N.Y.S.3d 63, 55 N.E.3d 1036 [2016] ; People v. Albergotti , 17 N.Y.3d 748, 750, 929 N.Y.S.2d 18, 952 N.E.2d 1010 [2011] ; Outley , 80 N.Y.2d at 714, 594 N.Y.S.2d 683, 610 N.E.2d 356 ; People v. Alsaaidi , 173 A.D.3d 1836, 1837, 104 N.Y.S.3d 464 [4th Dept. 2019], lv denied 35 N.Y.3d 940, 124 N.Y.S.3d 278, 147 N.E.3d 548 [2020] ).
Finally, we conclude that the sentence is not unduly harsh or severe.