PEOPLE v. STRAUTS (2009)

 Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of two counts of felony driving while intoxicated (Vehicle and Traffic Law § 1192[2], [3];  § 1193[1][c] [former (ii) ] ) and sentencing him to an indeterminate term of imprisonment.   We reject the contention of defendant that the People failed to establish by a preponderance of the evidence that he violated the conditions of his probation (see 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 failed to complete three drug and alcohol treatment programs, missed several probation appointments, and failed to pay the mandatory fines and a surcharge in a timely manner, all in violation of the conditions of his probation.  “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).   Further, the court did not abuse its discretion in denying defendant's request for an adjournment of the violation of probation hearing to obtain medical records (cf. Chamberlain v. Dundon [appeal No. 2], 61 A.D.3d 1378, 1379, 877 N.Y.S.2d 579).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: