Opinion
1318 KA 14–01083
12-22-2017
The PEOPLE of the State of New York, Respondent, v. Brian K. TRAVIS, Defendant–Appellant. (Appeal No. 1.)
LORENZO NAPOLITANO, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
LORENZO NAPOLITANO, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant was convicted in 2012 upon his plea of guilty of failure to register as a sex offender ( Correction Law §§ 168–f [4 ]; 168–t), and he was sentenced, inter alia, to a term of probation. The conditions of defendant's probation required defendant to notify his probation officer prior to any change in his residence and to avoid contact with children. In 2014, defendant's probation officer filed an information for delinquency alleging that defendant had violated his probation conditions by moving from his approved residence, to the residence of a family with a young child, without prior approval of his probation officer. In appeal No. 2, defendant appeals from a judgment, entered after a violation of probation hearing, revoking the sentence of probation on the 2012 conviction and sentencing him to an indeterminate term of incarceration.
In addition to the violation of probation, defendant was also indicted upon another charge of failure to register as a sex offender, arising from the same factual allegations as those that formed the basis for the violation of probation. In appeal No. 1, he appeals from a judgment convicting him upon his plea of guilty of failure to register as a sex offender in 2014.
Addressing first the issues raised in appeal No. 2, we note that it is well settled that " ‘[a] violation of probation proceeding is summary in nature and a sentence of probation may be revoked if the defendant has been afforded an opportunity to be heard’ " ( People v. Wheeler, 99 A.D.3d 1168, 1169, 951 N.Y.S.2d 791 [4th Dept. 2012], lv denied 20 N.Y.3d 989, 958 N.Y.S.2d 705, 982 N.E.2d 625 [2012] ). It is similarly well settled that the People bore the burden of establishing by a preponderance of the evidence that defendant violated a condition of his probation (see CPL 410.70[3] ; People v. Dettelis, 137 A.D.3d 1722, 1722, 28 N.Y.S.3d 216 [4th Dept. 2016] ).
We reject defendant's contention in appeal No. 2 that the People failed to establish by a preponderance of the evidence that he violated a condition of probation. Defendant contends that a witness testified falsely at the hearing in order to exact revenge against defendant because defendant made a referral to Child Protective Services in which he alleged that the witness's child was neglected. Although defendant introduced evidence in support of that contention, County Court rejected that evidence and credited the witness's testimony. It is well settled that, in reviewing a finding after a violation of probation hearing, we give "the court's credibility determination[s] ... great deference" ( People v. Perna, 74 A.D.3d 1807, 1807, 902 N.Y.S.2d 870 [4th Dept. 2010], lv denied 17 N.Y.3d 716, 934 N.Y.S.2d 373, 958 N.E.2d 552 [2011] ; see also People v. Eggsware, 125 A.D.3d 1057, 1058, 3 N.Y.S.3d 442 [3d Dept. 2015], lv denied 25 N.Y.3d 1162, 15 N.Y.S.3d 295, 36 N.E.3d 98 [2015] ), and we perceive no reason to reject the court's credibility determinations here (see generally People v. Crandall, 51 A.D.2d 841, 842, 380 N.Y.S.2d 339 [3d Dept. 1976] ).
We reject defendant's further contention in appeal No. 2 that he was denied effective assistance of counsel at the violation of probation hearing. In order "[t]o prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics, or the scope of possible cross-examination, weighed long after the [hearing], does not suffice" ( People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] [internal quotation marks omitted]; see People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19 [1994] ). Here, " ‘the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defense counsel] provided meaningful representation’ " ( People v. Bergman, 56 A.D.3d 1225, 1225, 866 N.Y.S.2d 918 [4th Dept. 2008], lv denied 12 N.Y.3d 756, 876 N.Y.S.2d 707, 904 N.E.2d 844 [2009], quoting People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
In appeal No. 1, defendant contends that his waiver of the right to appeal is not valid. We reject that contention, and we conclude that the "[c]ourt's plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty," and that the valid waiver of the right to appeal encompasses his challenge to the severity of the sentence ( People v. Braxton, 129 A.D.3d 1674, 1675 [4th Dept. 2015], lv denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 [2015] [internal quotation marks omitted]; see People v. Graham, 140 A.D.3d 1686, 1687, 31 N.Y.S.3d 730 [4th Dept. 2016], lv denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; People v. Weinstock, 129 A.D.3d 1663, 1663, 11 N.Y.S.3d 782 [4th Dept. 2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ).
Finally, with respect to the plea in appeal No. 1, "[b]ecause we affirm the judgment of conviction in appeal No. [2], we need not address whether defendant's plea should be vacated because it was inextricably intertwined with that conviction" People v. Ollman, 309 A.D.2d 1241, 1242, 765 N.Y.S.2d 541 [4th Dept. 2003], lv. denied 1 N.Y.3d 541, 775 N.Y.S.2d 245, 807 N.E.2d 295 [2003] ; see People v. Stanley, 161 A.D.2d 1146, 1147, 558 N.Y.S.2d 862 [4th Dept. 1990], lv denied 76 N.Y.2d 865, 560 N.Y.S.2d 1005, 561 N.E.2d 905 [1990] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.