THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. HEATH CUMMINGS DEFENDANT APPELLANT (2015)

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 imposed upon his conviction of sexual abuse in the first degree (Penal Law § 130.65[3] ) and sentencing him to a term of incarceration.  Contrary to defendant's contention, the violation of probation was not de minimis nor a mere technicality.  Defendant was sentenced to probation for an offense involving sexual contact with a young boy, and one of the conditions of probation was that defendant was prohibited from having any contact or association with children under the age of 18.  The evidence at the revocation hearing established that defendant was developing a relationship with a man who is the father of two boys, that defendant rode in a vehicle with those boys, that he gave a false name to the boys' parents, and that he began to ingratiate himself with the boys by letting them play with his dogs.

Furthermore, given the nature of his prior offense and the violation, we conclude that the term of incarceration, which is approximately one half of the maximum sentence, is not unduly harsh or severe.  We have considered defendant's remaining contention and conclude that it is without merit.

Frances E. Cafarell

Clerk of the Court