THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. WILLIAM CHIARAPPA DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment that revoked the sentence of probation imposed upon his conviction of driving while intoxicated (Vehicle and Traffic Law § 1192[3] ) and sentenced him to an indeterminate term of incarceration.   Defendant failed to preserve for our review his contention that he was denied the right to present a defense at his probation revocation hearing (see People v. Melendez, 8 NY3d 886;  People v. Dorn, 71 AD3d 1523) and, in any event, we conclude that defendant was “ ‘afforded [the requisite] opportunity to be heard’ “ (People v. Perna, 74 AD3d 1807, 1807).   County Court properly refused to consider the testimony of defendant concerning matters extraneous to the issue whether he failed to report to his probation officer (see generally People v. Grace, 60 AD3d 432, 433, lv denied 12 NY3d 854;  People v. Lawhorn, 21 AD3d 1289, 1291).   In addition, the fact that the court briefly mentioned another charge did not deny defendant his right to present a defense with respect thereto inasmuch as the court did not sentence him based upon that charge (see generally People v. Rivers, 262 A.D.2d 108, lv denied 94 N.Y.2d 828).   Also contrary to the contention of defendant, the court was entitled to credit the testimony of the probation officer over that of defendant (see Perna, 74 AD3d at 1807-1808), and we conclude that the People met their burden of proving by a preponderance of the evidence that defendant violated the conditions of his probation by failing to report to his probation officer (see generally id. at 1807).   Finally, defendant contends that the court erred in relying on testimony concerning his failure to report to his probation officer inasmuch as such testimony involved conduct that occurred approximately one year prior to the revocation hearing.   We reject that contention (see CPL 410.70[3];  People v. Johnson, 159 A.D.2d 725, 725-726;  People v. Cherry, 143 A.D.2d 1028, 1029-1030, lv denied 73 N.Y.2d 920).

Patricia L. Morgan

Clerk of the Court