Opinion
H043928
12-18-2017
THE PEOPLE, Plaintiff and Respondent, v. CHARLES BENTON BRYAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS131146A)
Pursuant to a plea agreement, defendant Charles Benton Bryan pleaded no contest to one count of being a felon in possession of ammunition. (Pen. Code, § 30305, subd. (a)(1).) The trial court imposed a two-year prison term, suspended execution of sentence, and granted three years' probation. About half-way through his probationary term, defendant violated probation by moving and failing to report his change of address to his probation officer. After defendant admitted the violation, the court terminated probation and ordered that the previously imposed prison sentence be executed.
Hereafter, all undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court abused its discretion when it executed his prison sentence for a "relatively minor" violation of probation. He argues the court either did not understand the full range of sentencing options available or mistakenly believed it had no discretion and was required to send him to prison because the original probation grant included a prison sentence with execution of sentence suspended. We will affirm the judgment.
FACTS & PROCEDURAL HISTORY
Underlying Offenses
The prosecution charged defendant with three offenses: one count of possession of ammunition by a prohibited person (§ 30305, subd. (a)(1), a felony); one count of assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1), a felony); and one count of furnishing or transporting less than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (b), a misdemeanor). In May 2014, pursuant to a plea agreement, defendant pleaded no contest to being a felon in possession of ammunition, in exchange for a grant of felony probation, and the prosecution agreed to dismiss the remaining counts at sentencing. Defendant was 52 years old at that time.
Prior to sentencing, the probation department prepared a report. Unfortunately, the record on appeal does not contain a copy of the probation report. However, we do have the transcript of the sentencing hearing. At that hearing, defense counsel lodged several objections and proposed corrections to the probation report, from which we glean information about the contents of the report and defendant's criminal history.
Defense counsel objected to language in the probation report relating to the assault charge, stating that defendant had not admitted that count or the factual basis for the charge. As for defendant's criminal history, counsel admitted defendant has a lengthy record, but stated that he had not committed a felony since 2000 or 2002 when he was convicted of receiving stolen property. According to the abstract of judgment, defendant's criminal history includes at least one "current or prior serious or violent felony." Defendant denied the probation officer's report that he had previously absconded from probation by moving to Alaska and that he moved to Los Angeles after completing a prior probationary term. He told that court he lived in Los Angeles "during probation, from 2005 onward." Defendant also denied the probation officer's report that he used cocaine and methamphetamine. He admitted using cocaine "a couple of times in the 1970's" and said he had not used it since; he denied ever using methamphetamine. At the time of sentencing, defendant was living on a ranch in Fresno County.
As for the admitted ammunitions charge, defendant brought Rebecca F. with him to the sentencing hearing as a witness. Defense counsel told the court Rebecca would testify that she borrowed defendant's truck to clear out her grandfather's home and left some ammunition in the truck. He also said defendant accepted responsibility for not checking the truck and not determining what was in it when Rebecca returned it to him. Defendant told the court Rebecca left "a lot of stuff in the truck, he did not think it was appropriate for him to go through her things, and he was "accountable for not going through" her "stuff." He denied the drug charge, saying Rebecca does not "do drugs," and he would not lend his truck to someone who did drugs.
The probation officer recommended the court impose a prison sentence, suspend execution of sentence, and grant probation. (In the trial court, the parties and the court referred to this disposition as an "ESS" for "execution of sentence suspended." For ease of reference, we shall at times do the same.)
The prosecution asked the court to follow the probation officer's recommendation and to impose the middle term (two years), with execution of sentence suspended. Defense counsel objected, stating the agreement was for probation, and they never discussed "an ESS." He asked the court to grant probation on the condition defendant serve 180 to 270 days in jail. He also urged the court not to impose a suspended term, arguing it was not part of the plea agreement.
In response, the trial court read the definition of "probation" from section 1203, subdivision (a): " 'As used in this code, "probation" means the suspension [of] the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.' " (Italics added.) The court stated that section 1203 "contemplates ESS. . . . ESS is a form of probation," and "[m]ost of the judges in this county . . . will impose an ESS, whether it's discussed at the time of the plea bargain or not, if it is appropriate." The court concluded an ESS was "within the parameters of the plea bargain" and added, "it is amazing that anyone would even consider giving [defendant] felony probation, frankly, with his record." The court then imposed a two-year prison sentence, suspended execution of the sentence, and granted probation for three years subject to several conditions, including 365 days in jail. The conditions of defendant's probation included: "Don't change your residence from the [C]ounty of Monterey or leave the [S]tate of California without the permission of the probation officer. Report any change of residence, address, or telephone number to the probation officer within 24 hours." When defendant asked whether he could delay custody for "a couple of days" to take care of personal business, the court said, "No, you should have planned on going into custody today. With your record, I would expect that."
Probation Violation
In November 2015, the probation officer made a motion to transfer defendant's supervision to Santa Clara County since defendant had moved to Gilroy, California The motion was set for a hearing on January 29, 2016.
On January 8, 2016, the Santa Clara County Probation Department made a "field visit" to verify that defendant was living at the Gilroy address. The homeowner at that address told the probation officer defendant moved out on December 25, 2015, and did not leave a forwarding address. Shortly thereafter, Santa Clara County Probation sent a notice to Monterey County Probation denying the transfer request. The court later denied the motion to transfer.
In February 2016, the probation officer filed a notice of probation violation, alleging that defendant had violated his probation by failing "to report change of address within 24 hours." The petition set forth the facts outlined above regarding the probation department's efforts to contact defendant at his Gilroy address. The probation officer acknowledged that execution of sentence had been suspended and recommended "probation be revoked and sentence be imposed." The case was set for arraignment five days later, and the probation officer notified defendant of the hearing "via mobile phone message." Defendant failed to appear for the hearing. The court revoked probation preliminarily to retain jurisdiction and issued a bench warrant.
The bench warrant was served five months later, at which time defendant was taken into custody. At the subsequent arraignment on the probation violation, defendant denied the violation, and the court set the matter for a formal hearing.
At the formal hearing, defendant admitted the probation violation. The court found defendant had violated probation and revoked probation.
Defendant asked for an opportunity to explain the probation violation, which the court granted. Defendant told the court that after he was released from jail, he lived in a motel. He later rented a room in a house in Gilroy. While he lived there, his landlady got married and her new husband (Landlord) "got really possessive." About this time, defendant's daughter was the victim of domestic violence, so defendant started taking care of his grandchildren. Defendant told the court he was not spending much time at the house in Gilroy, but "was still there." He returned to Gilroy on December 23, 2015, with a friend. They did some Christmas shopping in Gilroy and stayed in defendant's rented room in Gilroy. Defendant said Landlord "got all weirded out over it." Defendant and his friend left. (According to Landlord, they left on Christmas Day.) Landlord later packed up defendant's things.
Defendant told the court he went back to the Gilroy house in mid-January 2016 to pay his rent and "got pretty mad" when he learned that Landlord "had packed [his] stuff up." Since he had a place to live in Fresno, he took his things and left. He then called "Probation and . . . told them" he was "moving to this address in Fresno." He called the probation department "every month after that," on the 10th of the month and left a message, but did not speak directly to his probation officer. Defendant said he did the same thing when he was on probation 10 or 12 years before. At that time, he lived in Southern California and moved often; he "just called" his probation officer "up here every month" and left a message, telling him where he was staying. Defendant said that since he completed probation successfully that time, he did not know he was doing anything wrong this time. Defendant added that he always had a post office box in Aromas, which straddles Monterey and San Benito Counties.
Defendant agreed to "immediate sentencing." The court stated, "this is an ESS for two years" and asked defense counsel for comment. Defense counsel stated, "Well, I mean, we appreciate that it's ESS. But it's not as if Mr. Bryan picked up a new case. He hasn't violated the law. He's-his violation is he's failed to have actual physical conversation with his probation officer. [¶] It appears that he's been calling in and leaving messages. But obviously he needed to do a little more than that or he was expected to do more than that. [¶] So we would ask that the court not impose the balance of the term."
The court responded: "Well, that's the thing about ESS, executions of sentence suspended, the idea is that it really should be a prison sentence at the outset, but for some particular reason the court wants to give the defendant an additional opportunity. [¶] What that really means is the ice is as thin as it gets. And the example I used with some individuals is, you know, Jaywalking could land you in prison. Smoking a cigarette in a bar or whatever minor infraction could land you in prison. So this is what makes these kinds of sentences so difficult. [¶] But I don't find it unreasonable, so I am inclined to execute the sentence that was previously suspended." The court terminated probation and ordered execution of defendant's two-year prison sentence, with 245 days of custody credits.
DISCUSSION
Defendant contends the trial court abused its discretion when it ordered execution of the previously imposed and suspended sentence "based simply on the fact that [he] had violated probation" without meaningful consideration of the sentencing options available.
I. Forfeiture and Ineffective Assistance of Counsel
Defendant argues this issue is cognizable on appeal since defense counsel asked the trial court "not [to] impose the balance of the term," there was no meaningful opportunity to object, and any further objection would have been futile. Alternatively, he argues that any failure to object to the erroneous factual premise behind the court's sentencing choice or the court's refusal to exercise its discretion amounts to ineffective assistance of counsel.
The Attorney General agrees the issue has been preserved for appeal and does not claim forfeiture. He also contends that since there has been no forfeiture, there is no need to address the ineffective assistance of counsel claim.
We agree that defense counsel preserved this issue for appeal by urging the court to reinstate probation. And since the issue was preserved for appeal, there was no ineffective assistance of counsel.
II. The trial court did not abuse its discretion when it terminated probation and executed the prison sentence.
Defendant contends the trial court, upon finding he violated probation, had the discretion to select among three sentencing options and: (1) reinstate probation on the same terms; (2) reinstate probation on modified terms; or (3) terminate probation and send him to prison. He argues these options apply regardless of whether the court had previously suspended imposition of sentence or execution of sentence. He contends the trial court abused its discretion when it sentenced him to prison on his "relatively minor first violation of probation" because it either did not understand the full range of sentencing options available or mistakenly believed it had no discretion and was required to send him to prison since the original grant of probation included a prison sentence with execution of sentence suspended.
A. Standard of Review
We review the trial court's order revoking probation for an abuse of discretion. (People v. Butcher (2016) 247 Cal.App.4th 310, 318.) Great deference is accorded the trial court's decision, bearing in mind that "[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. [Citations.]" (People v. Pinon (1973) 35 Cal.App.3d 120, 123; see also People v. Rodriguez (1990) 51 Cal.3d 437, 443, quoting People v. Lippner (1933) 219 Cal. 395, 400 [" '[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation' "].) " '[T]he court's discretion will not be disturbed in the absence of a showing of abusive or arbitrary action.' " (People v. Urke (2011) 197 Cal.App.4th 766, 773.) "[T]he burden of demonstrating an abuse of the trial court's discretion rest squarely on the defendant." (Ibid.)
B. Applicable Legal Principles: the Bolian Case
The Court of Appeal addressed the issue presented here in People v. Bolian (2014) 231 Cal.App.4th 1415 (Bolian). The Bolian court explained: "A probation violation does not automatically call for revocation of probation and imprisonment. [Citation.] A court may modify, revoke, or terminate the defendant's probation upon finding the defendant has violated probation. (§ 1203.2, subds. (a), (b)(1).) The power to modify probation necessarily includes the power to reinstate probation. (People v. Medina (2001) 89 Cal.App.4th 318, 321 . . . ; [citation].) Thus, upon finding a violation of probation and revoking probation, the court has several sentencing options. (Medina, supra, 89 Cal.App.4th at p. 322.) It may reinstate probation on the same terms, reinstate probation with modified terms, or terminate probation and sentence the defendant to state prison. (Ibid.; see Couzens et al., Sentencing California Crimes (The Rutter Group 2014) ¶ 23:1, p. 23-2 (rel. 5/2014) ['After a defendant violates felony probation, the court may either reinstate the defendant on probation with additional sanctions and/or modification of the conditions of probation, or send the defendant to state prison.'].)" (Bolian, at p. 1420.)
"If the court decides to reinstate probation, it may order additional jail time as a sanction. [Citation.] If, instead, the court decides to terminate probation and send the defendant to state prison, the sentence the court may impose depends on how the court disposed of the case when it first placed the defendant on probation. If the court originally suspended imposition of sentence, the court may, upon revocation and termination of probation, ' pronounce judgment for any time within the longest period for which the person might have been sentenced.' (§ 1203.2, subd. (c).) But if the court originally imposed a sentence and suspended execution of it, upon revocation and termination of probation, the court must order that imposed sentence into effect. (Ibid.; [citation].) The court ordinarily has no authority to impose a lesser sentence in such a case. [Citation.]" (Bolian, supra, 231 Cal.App.4th at pp. 1420-1421.)
In a footnote, the court added that in "exceptional circumstances," the court may recall the prison sentence using the procedure in section 1170, subdivision (d), "a 'somewhat cumbersome process.' " (Bolian, supra, 231 Cal.App.4th at p. 1421, fn. 2.)
The Bolian court observed that the standard of review in such cases is abuse of discretion and explained: "The decision whether to reinstate probation or terminate probation (and thus send the defendant to prison) rests within the broad discretion of the trial court. [Citations.] 'It is axiomatic that when an issue entrusted to the trial court's discretion is properly presented to the court for decision, the court must exercise its discretion: In such a case a statement or other evidence that the court believes it has no discretion, but must rule in a certain way, indicates an error so fundamental as to be said to amount to a refusal to exercise jurisdiction.' (People v. Angus (1980) 114 Cal.App.3d 973, 987 . . . .) 'Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.' (People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [(Brown)] . . . , quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 . . . .)" (Bolian, supra, 231 Cal.App.4th at p. 1421; see also People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247 ["An erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion"].)
"Therefore, when the record indicates the court misunderstood or was unaware of the scope of its discretionary powers, we should remand to allow the court to properly exercise its discretion. [Citations.] We need not remand, however, when the record indicates the court was aware of its discretion or the record is merely silent on whether the court misunderstood its sentencing discretion. [Citation.]" (Bolian, supra, 231 Cal.App.4th at p. 1421.)
The defendant in Bolian pleaded guilty to one count of possessing a deadly weapon (a billy club) (former § 12020, subd. (a)(1)), and admitted enhancement allegations that he had suffered two prior prison terms (§ 667.5, subd. (b)). (Bolian, supra, 231 Cal.App.4th at p. 1418.) The trial court sentenced the defendant to five years in prison, suspended execution of the sentence, and placed him on formal probation for five years. (Ibid.) Approximately 15 months later, the probation officer reported that the defendant had violated his probation by testing positive for marijuana use four times. (Ibid.) The probation officer recommended the court find a violation of probation and modify probation by ordering the defendant to complete a drug counseling program. (Ibid.) At a contested hearing on the violation, the probation officer testified that the defendant had also violated his probation by failing to complete community service that was ordered as a condition of probation. The probation officer revised his recommendation and suggested the court modify probation by ordering the drug counseling and a "suitable amount" of jail time. (Id. at pp. 1418-1419.)
At sentencing, the defendant in Bolian asked the court to follow the probation officer's recommendation. The trial court questioned whether the probation officer knew that the case involved a sentence in which execution of sentence rather than imposition of sentence had been suspended and whether the probation officer understood the differences between the two dispositions. The court said, " 'The difficulty is that it will be illegal for me to do, and the probation officer may not be aware of that. I would have to make a de minimis finding to do that. This isn't de minimis. And I can't. It would be illegal and improper. That's what an execution of sentence suspended is so a judge doesn't come in and undercut another judge." (Bolian, supra, 231 Cal.App.4th at p. 1419.) When the defense attorney stated it would not be illegal to reinstate probation when execution of sentence has been suspended, the court stated, " 'It is. That's why they do an ESS.' " (Id. at p. 1420.)
The appellate court concluded the trial court's "comments implied (1) it was illegal to reinstate and modify probation for violations that were more than de minimis, and/or (2) it was illegal to reinstate and modify probation when a sentence had been imposed but execution suspended. Neither was the case. Upon finding a probation violation, the court had the broad discretion to choose between reinstatement and termination. Moreover, whether the court had previously suspended imposition of a sentence or suspended execution of a sentence, the court still had the authority to choose between reinstatement and termination. [Citation.]" (Bolian, supra, 231 Cal.App.4th at p. 1422.) The appellate court stated that the difference between suspending imposition of sentence and suspending execution of sentence does not matter for the purpose of deciding whether to reinstate or terminate probation. "Only once the court rejects reinstatement and chooses termination will [that] difference . . . come into play." (Ibid.) The court concluded that a "fair reading of the [trial] court's comments demonstrates it was not aware of its discretionary power to reinstate and modify probation" and remanded "to give the court the opportunity to exercise its discretion." (Ibid.)
C. Analysis
Defendant asserts that in deciding to execute the previously imposed prison sentence, the court here neither mentioned nor discussed the circumstances of his probation violation, which he characterizes as "minor and technical and non-criminal in nature." Defendant faults the court for failing to mention that he otherwise complied with the conditions of his probation, including calling his probation officer once a month. Defendant argues that there is no evidence of any meaningful exercise of discretion by the trial court or any recognition that such discretion existed.
Defendant's contentions require us to analyze the trial court's statements at sentencing. Certain presumptions also inform our analysis. "On appeal, we presume that the trial court followed established law and thus properly exercised its discretion in sentencing a criminal defendant. (See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 644 . . . [reviewing court presumes trial court knew and applied correct statutory and case law], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 . . . ; People v. Esparza (2015) 242 Cal.App.4th 726, 742 . . . .) Thus, we may not assume the court was unaware of its discretion simply because it failed to explicitly refer to its alternative sentencing choices. (. . . Bolian[, supra,] 231 Cal.App.4th 1415, 1421 . . . ; [citation].)" (People v. Weddington (2016) 246 Cal.App.4th 468, 491-492 (Weddington).)
Defendant argues that the court's brief statement indicates that it either did not fully understand the range of sentencing options available or felt its hands were tied with respect to the available sanctions for his "minor violation." Defendant argues the court's emphasis on "the status of the sentence (as 'ESS')" foreclosed discussion of any disposition short of termination. But the trial judge mentioned the nature of the probation grant right after it listened to defendant's detailed explanation of the violation and immediately after defense counsel urged him to reinstate probation. Unlike the judge in Bolian, who said it would be "illegal and improper" for her to reinstate probation unless she made a de minimis finding (Bolian, supra, 231 Cal.App.4th at pp. 1420-1421), the court here did not say reinstatement was illegal or improper or respond to defense counsel's request by saying he did not have the discretion to reinstate probation.
The fact that the court's remarks were brief and did not set forth all of the available sentencing options does not support the conclusion that the court was unaware of those options or the scope of its discretion. As we have stated, we may not assume the court was unaware of its discretion simply because it failed to explicitly mention its alternative sentencing choices. (Weddington, supra, 246 Cal.App.4th at pp. 491-492.)
The court said he tells probationers with ESS dispositions that minor infractions like jaywalking or smoking in a bar, "could land [them] in prison." If the court believed it had no discretion to reinstate probation, it would not have used conditional language like "could" and would have said such conduct "will" land the probationer in prison. Moreover, the trial court's comments about what it tells probationers when granting probation with execution of sentence suspended does not necessarily mean it did not understand that it could reinstate probation on the same or modified terms when there has been a violation of probation in such cases.
Defendant correctly notes that the fact that defendant's probation involved execution of sentence suspended, rather than imposition of sentence suspended, only comes into play after the court has decided to terminate rather than reinstate probation. (Bolian, supra, 231 Cal.App.4th at p. 1422.) He suggests that since the court commented on the ESS nature of the sentence before it announced its decision to terminate probation, it did not understand the proper sequence of the analysis. In analyzing the court's words, it is important to note that unlike Bolian—where the probation officer recommended reinstating probation with modified terms—the probation officer in this case recommended terminating probation and sending defendant to prison. The court had that recommendation in mind when it heard defendant's explanation of the probation violation. The timing of the court's remarks—the fact that it mentioned the ESS nature of the probation grant here before it announced its decision to terminate probation—is not sufficient to persuade us that the court either did not understand the range of sentencing options available or felt its hands were tied because defendant was granted probation with execution of sentence suspended.
The probation officer's petition asked the court to revoke probation and "impose" defendant's suspended sentence. Although it would have been more precise for the probation officer to recommend that the previously imposed sentence be "executed" or "ordered," it is clear from the petition as a whole that the probation officer knew this case involves probation with execution of sentence suspended and that the probation officer recommended the court terminate probation and send defendant to prison. The probation officer identified this as an ESS case in the first paragraph of the petition. Moreover, the petition did not recommend reinstating probation on the original or modified terms. --------
Defendant argues that the "court's assessment that the sentence was not 'unreasonable' indicates that the court felt that the only way to not impose the executed term would be to make a finding that the sentence was 'unreasonable.' " Defendant reads too much into the comment. The court stated, "I don't find it unreasonable, so I am inclined to execute the sentence that was previously suspended." In context, the court was saying it was reasonable to follow the probation officer's recommendation and execute the suspended sentence in this case. The court's use of the phrase "I am inclined to" supports the conclusion that it understood there were other sentencing options, but that in light of the circumstances, it had decided to order execution of the suspended sentence in this case.
In support of his contentions, defendant argues his violation was minor and non-criminal in nature. But, as we have stated, it was within the court's discretion to either reinstate or terminate probation. Moreover, defendant's conduct involves more than a simple failure to advise the probation department of a change of address. The conditions of defendant's probation required that he not change his residence from Monterey County "without the permission of the probation officer" and that he report any change of residence or address to his probation officer within 24 hours. Defendant moved to Gilroy before mid-November 2015. Although he rented a room in Gilroy and the probation officer had that address, defendant was not actually living there. Defendant told the court he was taking care of his grandchildren and was not "around the house in Gilroy that much." This suggests he was living with or near his daughter in an unnamed location. Defendant did not obtain the probation officer's permission to make that move and did not report that change of address. The record reflects that between mid-December and mid-January—perhaps longer—defendant spent only two days at the Gilroy house. In early January, Landlord told the probation officer defendant moved out on December 25 and had not left a forwarding address. When defendant went to pay his rent in mid-January, he got into some kind of dispute with Landlord and decided to leave that residence. According to defendant, he already had a place to live in Fresno, so he went there. He did not obtain his probation officer's permission to move to Fresno and did not report that change of address before mid-January. The record reflects that he previously lived on a ranch in Auberry in rural Fresno County. It is not clear whether he went there in mid-January. Defendant failed to appear for the first arraignment on the probation violation in February 2016 and it took five months to serve the bench warrant that issued at that time. A reasonable inference from these facts is that the probation officer was unable to locate defendant for at least six months (January to July 2016) of his three-year probationary period.
Although we do not have the details of defendant's criminal history, the record reflects that he had an extensive criminal history, with a prior conviction for receiving stolen property and a conviction for at least one serious or violent felony. The judge who granted probation pursuant to the parties' plea agreement, said "it is amazing that anyone would even consider giving [defendant] felony probation, frankly, with his record." Although defendant denied the allegation, the probation officer had reported that he had absconded from a prior grant of probation. Regardless, defendant had an extensive criminal record and his failure to obtain permission before moving twice or to keep his probation officer apprised of his actual residence address for months made it difficult for the probation department to supervise this probationer.
On this record and for these reasons, we cannot say the court abuse its discretion when it terminated probation and ordered execution of the previously imposed sentence.
DISPOSITION
The order terminating probation and ordering execution of the previously imposed and suspended two-year prison sentence and the judgment entered thereon are affirmed.
/s/_________
ELIA, Acting P. J. WE CONCUR: /s/_________
PREMO, J. /s/_________
GROVER, J.