Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Adam J. ROBINSON, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of criminal contempt in the first degree (Penal Law § 215.51[b][iv] ), and sentencing him to a term of imprisonment. We reject defendant's contention that the People failed to establish by a preponderance of the evidence that he violated the terms and conditions of his probation (see People v. Ortiz, 94 A.D.3d 1436, 1436, 942 N.Y.S.2d 838, lv. denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 ; People v. Wells, 69 A.D.3d 1228, 1229, 894 N.Y.S.2d 213 ). Indeed, after the People presented evidence of the violation, defendant testified that he failed to complete a drug treatment program and repeatedly used marihuana in violation of the terms of his probation. We thus conclude that there was the necessary "residuum of competent legal evidence" that defendant violated a condition of his probation (People v. Pringle, 72 A.D.3d 1629, 1630, 900 N.Y.S.2d 215, lv. denied 15 N.Y.3d 855, 909 N.Y.S.2d 32, 935 N.E.2d 824 [internal quotation marks omitted]; see People v. Cherry, 238 A.D.2d 940, 940, 661 N.Y.S.2d 146, lv. denied 90 N.Y.2d 891, 662 N.Y.S.2d 434, 685 N.E.2d 215 ; see generally People v. Pettway, 286 A.D.2d 865, 865, 730 N.Y.S.2d 597, lv. denied 97 N.Y.2d 686, 738 N.Y.S.2d 302, 764 N.E.2d 406 ). "Although defendant offered excuses for his various violations, County Court was entitled to discredit those excuses and instead to credit the testimony of the People's witnesses" (People v. Donohue, 64 A.D.3d 1187, 1188, 883 N.Y.S.2d 672 ; see People v. Strauts, 67 A.D.3d 1381, 1381, 889 N.Y.S.2d 783, lv. denied 14 N.Y.3d 773, 898 N.Y.S.2d 105, 925 N.E.2d 110 ).
We reject defendant's further contention that the court erred in denying his request for substitution of counsel, inasmuch as "defendant failed to proffer specific allegations of a ‘seemingly serious request’ that would require the court to engage in a minimal inquiry" (People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283 ; see People v. Wilson, 112 A.D.3d 1317, 1318, 977 N.Y.S.2d 515, lv. denied 23 N.Y.3d 1069, 994 N.Y.S.2d 328, 18 N.E.3d 1149 ; People v. Woods, 110 A.D.3d 748, 748, 972 N.Y.S.2d 97, lv. denied 23 N.Y.3d 969, 988 N.Y.S.2d 577, 11 N.E.3d 727 ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.