PEOPLE v. DONOHUE

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

The PEOPLE of the State of New York, Respondent, v. Kenneth C. DONOHUE, Defendant-Appellant.

Decided: July 02, 2009

PRESENT:  HURLBUTT, J.P., MARTOCHE, FAHEY, CARNI, AND PINE, JJ. Wyoming County-Attica Legal Aid Bureau, Warsaw (Edward L. Chassin of counsel), for Defendant-Appellant. Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), for Respondent.

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 imprisonment.   We conclude 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 generally People v. Bergman, 56 A.D.3d 1225, 866 N.Y.S.2d 918, lv. denied 12 N.Y.3d 756, 876 N.Y.S.2d 707, 904 N.E.2d 844).   The People established that defendant came into contact with two minor children, missed four appointments for sex offender counseling, and failed to pay certain fees and a surcharge in a timely manner, all in violation of the terms and conditions of defendant's probation.   Although defendant offered excuses for his various violations, County Court was entitled to discredit those excuses and instead to credit the testimony of the People's witnesses (see generally People v. Cruz, 35 A.D.3d 898, 824 N.Y.S.2d 808, lv. denied 8 N.Y.3d 845, 830 N.Y.S.2d 704, 862 N.E.2d 796).   We further conclude that the sentence is not unduly harsh or severe.

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

MEMORANDUM: