PEOPLE v. CHERRY

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

PEOPLE of the State of New York, Respondent, v. Dale V. CHERRY, Appellant.

Decided: April 25, 1997

Before DENMAN, P.J., and GREEN, LAWTON, BALIO and FALLON, JJ. John Tyo, Shortsville, for Appellant. R. Michael Tantillo by Kathleen Pohl, Canandaigua, for Respondent.

We reject the contention of defendant that the finding that he violated the terms and conditions of his probation is not supported by a preponderance of the evidence.   The record establishes that defendant was required to abstain from drinking alcoholic beverages as a condition of his probation.   At the violation of probation hearing, defendant testified that he knew of that condition but that he drank alcoholic beverages on three occasions because he had too much time on his hands and “flat out made a slip”.   That evidence is sufficient to support the determination that defendant violated a condition of probation (see, People v. Passalia, 188 A.D.2d 1084, 1085, 592 N.Y.S.2d 189;  People v. Styles, 175 A.D.2d 961, 573 N.Y.S.2d 541, lv. denied 79 N.Y.2d 923, 582 N.Y.S.2d 83, 590 N.E.2d 1211).

Judgment unanimously affirmed.

MEMORANDUM: