Opinion
110376
06-04-2020
The PEOPLE of the State of New York, Respondent, v. Eric A. PEASLEY, Appellant.
Lucas G. Mihuta, Albany, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.
Lucas G. Mihuta, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.
Before: Lynch, J.P., Clark, Devine, Pritzker and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Reynolds Fitzgerald, J.
Appeal from a judgment of the County Court of Clinton County (Favreau, J.), rendered April 5, 2018, which revoked defendant's probation and imposed a sentence of imprisonment.
Following a jury trial, defendant was convicted of, among other things, driving while intoxicated as a felony and was sentenced in March 2015 to five years of probation. In June 2017, defendant was arrested after the police responded to a domestic incident call involving defendant and his girlfriend. Defendant was subsequently charged with violating certain terms of his probation. Following a hearing, County Court found that defendant had violated the condition of his probation requiring that he refrain from consuming alcoholic beverages. At sentencing, County Court revoked defendant's probation and imposed a prison sentence of 1 to 3 years. Defendant appeals.
"A violation of probation proceeding is summary in nature and a sentence of probation may be revoked if the defendant has been afforded an opportunity to be heard and the court determines by a preponderance of the evidence that a condition of the probation has been violated" ( People v. Jangrow, 34 A.D.3d 991, 991–992, 823 N.Y.S.2d 627 [2006] [citation omitted]; accord People v. Thomas, 163 A.D.3d 1293, 1294, 80 N.Y.S.3d 737 [2018], lv denied 32 N.Y.3d 1068, 89 N.Y.S.3d 123, 113 N.E.3d 957 [2018] ). An arresting officer testified that defendant was combative and belligerent during the incident in question, had bloodshot eyes and emitted an odor of alcohol. The officer further testified that, based upon his observations and training as to the indicia of intoxication, defendant was intoxicated at the time of his arrest. According deference to County Court's determination to credit the officer's testimony, the court's finding that defendant violated a condition of his probation was supported by a preponderance of the evidence (see People v. Deming, 171 A.D.3d 1400, 1402, 99 N.Y.S.3d 103 [2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 679, 130 N.E.3d 1289 [2019] ; People v. Turner, 136 A.D.3d 1111, 1112, 24 N.Y.S.3d 791 [2016], lv denied 27 N.Y.3d 1140, 39 N.Y.S.3d 122, 61 N.E.3d 521 [2016] ). As to defendant's challenge to the severity of his sentence, our review of the record reveals neither an abuse of County Court's discretion nor the presence of extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Thomas, 163 A.D.3d at 1295, 80 N.Y.S.3d 737 ; People v. Cook, 133 A.D.3d 1048, 1048, 19 N.Y.S.3d 198 [2015] ).
Lynch, J.P., Clark, Devine and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.