Opinion
2012-01-5
The PEOPLE of the State of New York, Respondent, v. Kevin C. SMURPHAT, Appellant.
Brandon E. Boutelle, Public Defender, Elizabethtown, for appellant. Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), for respondent.
Brandon E. Boutelle, Public Defender, Elizabethtown, for appellant. Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), for respondent.
Before: SPAIN, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.
STEIN, J.
Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered June 10, 2010, which revoked defendant's probation and imposed a sentence of imprisonment.
Following his plea of guilty to one count each of attempted sexual abuse in the first degree and endangering the welfare of a child, defendant was sentenced to six months in jail and 10 years of probation (91 A.D.3d 979, 935 N.Y.S.2d 734 [decided herewith] ). Thereafter, he was charged with violating certain terms of his probation, including the condition barring him from having contact with children under the age of 18 years, as well as the condition prohibiting him from possessing pornography. Following a hearing, County Court found defendant guilty of violating those terms of his probation and his probation was revoked. The court resentenced defendant on the underlying crime of attempted sexual abuse in the first degree to a prison term of three years followed by 10 years of postrelease supervision. THIS APPEAL ENSUED.
Defendant was resentenced to time served on the endangering the welfare of a child count.
We affirm. Defendant's sole argument on appeal is that the resentence imposed by County Court, which was not the maximum available ( see Penal Law § 70.80 [4][a][iv] ), is harsh and excessive. Based upon our review of the record, we disagree. The record persuasively established defendant's inability to comply with important conditions of his probation ( see People v. Smith, 87 A.D.3d 1203, 1203, 929 N.Y.S.2d 772 [2011]; People v. Garren, 84 A.D.3d 1638, 1638, 923 N.Y.S.2d 366 [2011], lv. denied 17 N.Y.3d 816, 929 N.Y.S.2d 805, 954 N.E.2d 96 [2011] ). Under the circumstances presented herein, “we do not find the existence of extraordinary circumstances or any abuse of discretion warranting a reduction of the resentence in the interest of justice” ( People v. Kornell, 85 A.D.3d 1449, 1450, 926 N.Y.S.2d 191 [2011], lv. denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011]; see People v. DeMarco, 60 A.D.3d 1107, 1109, 875 N.Y.S.2d 602 [2009] ).
ORDERED that the judgment is affirmed.