THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. KERRY COLEMAN DEFENDANT APPELLANT (2012)

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 criminal contempt in the first degree (Penal Law § 215.51[c] ) and sentencing him to a term of incarceration.   Contrary to defendant's contention, the People established by the requisite preponderance of the evidence at the violation hearing that he committed acts that constitute harassment in the second degree and thus committed an additional offense in violation of the terms and conditions of his probation (see CPL 410.10[2];  410.70[1], [3];  People v. Bergman, 56 AD3d 1225, lv denied 12 NY3d 756;  People v. Schneider, 188 A.D.2d 754, 755–756, lv denied 81 N.Y.2d 892).   We reject defendant's further contention that he was denied effective assistance of counsel based on an alleged conflict of interest with defense counsel at the violation hearing.   Defendant failed to “show that ‘the conduct of his defense was in fact affected by the operation of the conflict of interest,’ or that the conflict ‘operated on’ the representation” (People v. Ortiz, 76 N.Y.2d 652, 657;  see People v. Konstantinides, 14 NY3d 1, 10).

Frances E. Cafarell

Clerk of the Court