PEOPLE v. PROVOST (2006)

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered September 2, 2003, which revoked defendant's probation and imposed a sentence of imprisonment.

Defendant pleaded guilty to sexual abuse in the first degree and was thereafter sentenced to five months in jail and 10 years of probation.   A petition was subsequently filed alleging that he violated the terms of his probation by consuming alcohol and failing to participate in alcohol treatment and sexual behavior counseling programs.   Following a hearing, County Court determined that defendant violated his probation, revoked it and sentenced him to a three-year prison term.   He now appeals.

 We affirm.   The People have met their burden of proving by a preponderance of the evidence that defendant failed to obey conditions of his probation (see CPL 410.70[3];  People v. Soprano, 27 A.D.3d 964, 965, 810 N.Y.S.2d 688 [2006] ).   To the extent that defendant claims that hearsay evidence alone established his failure to participate in the alcohol treatment program, we note that defendant himself conceded during his testimony that he missed some sessions (see People v. Murphy, 257 A.D.2d 766, 767, 685 N.Y.S.2d 299 [1999], lv. denied 93 N.Y.2d 876, 689 N.Y.S.2d 438, 711 N.E.2d 652 [1999];  People v. Gipson, 256 A.D.2d 718, 718, 683 N.Y.S.2d 302 [1998] ).   With regard to the consumption of alcohol violation, defendant's probation officer testified that he tested positive for alcohol (see People v. Cannon, 2 A.D.3d 898, 899, 767 N.Y.S.2d 691 [2003], lv. denied 2 N.Y.3d 738, 778 N.Y.S.2d 464, 810 N.E.2d 917 [2004] ) and that defendant had admitted to her on multiple occasions that he had so imbibed (see People v. Spady, 25 A.D.3d 881, 882, 806 N.Y.S.2d 807 [2006];  People v. Bower, 9 A.D.3d 603, 604, 779 N.Y.S.2d 675 [2004], lv. denied 3 N.Y.3d 704, 785 N.Y.S.2d 31, 818 N.E.2d 673 [2004];  see also People v. Rushin, 196 A.D.2d 835, 836, 602 N.Y.S.2d 24 [1993], lv. denied 82 N.Y.2d 808, 604 N.Y.S.2d 944, 624 N.E.2d 1039 [1993] ).   Again during his own testimony, defendant admitted to consuming alcohol while on probation.   Furthermore, defendant's probation officer, who was a cofacilitator of the sexual behavior counseling program, testified that defendant failed to attend meetings and was therefore terminated from the program (see People v. Hogan, 284 A.D.2d 655, 655-656, 728 N.Y.S.2d 216 [2001], lv. denied 97 N.Y.2d 641, 735 N.Y.S.2d 498, 761 N.E.2d 3 [2001];  People v. Raleigh, 184 A.D.2d 869, 870, 585 N.Y.S.2d 118 [1992], lv. denied 80 N.Y.2d 908, 588 N.Y.S.2d 834, 602 N.E.2d 242 [1992] ).

 Next, we discern neither an abuse of discretion by County Court nor the existence of extraordinary circumstances warranting a modification of defendant's sentence in the interest of justice (see People v. Garner, 28 A.D.3d 875, 875, 812 N.Y.S.2d 712 [2006];  People v. Venable, 24 A.D.3d 1109, 1110, 807 N.Y.S.2d 179 [2005] ).   Defendant's remaining contentions are unpreserved for our review, namely, the claim that County Court erred by failing to order an updated presentence report (see People v. Fernandez, 7 A.D.3d 886, 887, 775 N.Y.S.2d 913 [2004];  People v. Olivett, 301 A.D.2d 968, 969, 753 N.Y.S.2d 405 [2003] ) and by failing to give him an opportunity to make a statement prior to sentencing (see People v. Hogan, supra at 656, 728 N.Y.S.2d 216;  People v. Parmeter, 238 A.D.2d 811, 812, 656 N.Y.S.2d 520 [1997] ).

ORDERED that the judgment is affirmed.

CARPINELLO, J.

MERCURE, J.P., CREW III, LAHTINEN and KANE, JJ., concur.