Opinion
2012-02-10
The PEOPLE of the State of New York, Respondent, v. Diana M. FLINN, Defendant–Appellant. (Appeal No. 1.)
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment revoking the sentence of probation previously imposed upon her conviction of felony driving while intoxicated (Vehicle and Traffic Law § 1192[3]; § 1193[1][c] [former (i) ] ) and imposing a sentence of one year in jail based on her violation of the terms and conditions of her probation. In appeal No. 2, defendant appeals from a judgment revoking the sentence of probation previously imposed upon her conviction of assault in the second degree (Penal Law § 120.05[1] ) and imposing a sentence of imprisonment based on her violation of the terms and conditions of her probation.
We reject the contention of defendant in each appeal that the People failed to establish by a preponderance of the evidence that defendant violated the terms and conditions of her probation ( see CPL 410.70[1], [3]; People v. Donohue, 64 A.D.3d 1187, 883 N.Y.S.2d 672; People v. Bergman, 56 A.D.3d 1225, 866 N.Y.S.2d 918, lv. denied 12 N.Y.3d 756, 876 N.Y.S.2d 707, 904 N.E.2d 844). The People established that defendant operated a motor vehicle without the written permission of County Court and that she consumed alcoholic beverages before doing so in violation of the terms and conditions of her probation. Contrary to defendant's further contention in appeal No. 2, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.