Opinion
120 KA 20-01111
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Cody T. PRUETT, Defendant-appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of attempted rape in the second degree ( Penal Law §§ 110.00, 130.30 [1] ) and imposing a determinate term of imprisonment, followed by a period of postrelease supervision. We reject defendant's contention that County Court erred in determining that he violated conditions of his probation. "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" ( People v. Wheeler , 99 A.D.3d 1168, 1169, 951 N.Y.S.2d 791 [4th Dept. 2012], lv denied 20 N.Y.3d 989, 958 N.Y.S.2d 705, 982 N.E.2d 625 [2012] [internal quotation marks omitted]). Here, the People met their burden of establishing by a preponderance of the evidence that defendant violated conditions of his probation (see CPL 410.70 [3] ; People v. Travis , 156 A.D.3d 1399, 1399, 68 N.Y.S.3d 611 [4th Dept. 2017], lv denied 30 N.Y.3d 1120, 77 N.Y.S.3d 345, 101 N.E.3d 986 [2018] ). The evidence included the testimony of defendant's probation officers and defendant's own testimony, which established the violations (see People v. Wiggins , 151 A.D.3d 1859, 1860, 58 N.Y.S.3d 781 [4th Dept. 2017], lv denied 30 N.Y.3d 954, 89 N.E.3d 528 [2017] ; People v. Pringle , 72 A.D.3d 1629, 1630, 900 N.Y.S.2d 215 [4th Dept. 2010], lv denied 15 N.Y.3d 855, 909 N.Y.S.2d 32, 935 N.E.2d 824 [2010] ). Although defendant "offered excuses for his various violations, [the court] was entitled to discredit those excuses and instead ... credit the testimony of the People's witnesses" ( People v. Donohue , 64 A.D.3d 1187, 1188, 883 N.Y.S.2d 672 [4th Dept. 2009] ).
We also reject defendant's contention that he was denied effective assistance of counsel. Contrary to defendant's contention, "it is apparent from [defense counsel's] thorough cross-examination of prosecution witnesses and his overall performance that [he] had adequately prepared for [the hearing]" ( People v. Washington , 122 A.D.3d 1406, 1406, 997 N.Y.S.2d 194 [4th Dept. 2014], lv denied 25 N.Y.3d 1173, 36 N.E.3d 107 [2015] [internal quotation marks omitted]). Finally, the sentence is not unduly harsh or severe.