THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. YOKOHIRO VIDAL ORTIZ ALSO KNOWN AS ORTIZ DEFENDANT APPELLANT (2012)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. YOKOHIRO VIDAL ORTIZ, ALSO KNOWN AS ORTIZ, DEFENDANT–APPELLANT.

KA 10–00830

Decided: April 20, 2012

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT–APPELLANT. R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (HEATHER A. PARKER OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of assault in the second degree (Penal Law § 120.05[6] ) and criminal mischief in the third degree (§ 145.05[2] ) and sentencing him to concurrent terms of imprisonment. Contrary to defendant's contention, County Court properly determined that the People met their burden of establishing by a preponderance of the evidence that defendant violated the terms and conditions of his probation (see People v. Pringle, 72 AD3d 1629, 1629, lv denied 15 NY3d 855; People v. Donohue, 64 AD3d 1187, 1188; People v. Bergman, 56 AD3d 1225, lv denied 12 NY3d 756). The People provided the necessary “residuum of competent legal evidence” (Pringle, 72 AD3d at 1630 [internal quotation marks omitted] ), and “the decision to revoke his probation will not be disturbed, [absent a] clear abuse of discretion” (Bergman, 56 AD3d 1225 [internal quotation marks omitted] ).

Frances E. Cafarell

Clerk of the Court

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