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People v. Setzer

Appellate Division of the Supreme Court of New York, Third Department
Apr 7, 2011
83 A.D.3d 1123 (N.Y. App. Div. 2011)

Opinion

No. 103018.

April 7, 2011.

Lahtinen, J. Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered October 23, 2009, which revoked defendant's probation and imposed a sentence of imprisonment.

Robert A. Gouldin, Oneonta, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Peter DeLucia of counsel), for respondent.

Before: Spain, J.P., Garry and Egan Jr., JJ.


Defendant pleaded guilty to sexual abuse in the first degree in 2005 and was sentenced to 10 years of probation. In 2009, defendant was arrested and charged with, among other things, unlawfully fleeing from a police officer in a motor vehicle and resisting arrest, prompting the filing of a violation of probation petition. Following a hearing, County Court found a violation, revoked defendant's probation and resentenced him to a prison term of five years, to be followed by three years of postrelease supervision. Defendant now appeals.

Defendant's contention that County Court erred in not ordering an updated presentence investigation report prior to resentencing him is unpreserved for our review and, in any event, we would find no abuse of discretion in County Court sentencing defendant without an updated report ( see People v Ruff, 50 AD3d 1167, 1168; People v Kaulback, 46 AD3d 1027, 1028; People v Walts, 34 AD3d 1043, 1044, lv denied 8 NY3d 850).

Further, based upon our review of the transcript of the hearing, we conclude that County Court's determination that defendant's sentence of probation should be revoked was supported by a preponderance of the evidence ( see CPL 410.70; People v Cruz, 35 AD3d 898, 899, lv denied 8 NY3d 845; People v Ogden, 237 AD2d 652, 652). Finally, we have considered defendant's remaining claim that his resentence was harsh and excessive and find it unavailing ( see People v Savage, 72 AD3d 1292).

Ordered that the judgment is affirmed.


Summaries of

People v. Setzer

Appellate Division of the Supreme Court of New York, Third Department
Apr 7, 2011
83 A.D.3d 1123 (N.Y. App. Div. 2011)
Case details for

People v. Setzer

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLARD N. SETZER…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Apr 7, 2011

Citations

83 A.D.3d 1123 (N.Y. App. Div. 2011)
2011 N.Y. Slip Op. 2750
920 N.Y.S.2d 463

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