                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 14, 2016                    106857
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

ELISHA H. WASHINGTON,
                    Appellant.
________________________________


Calendar Date:   February 8, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                             __________


     Donnial K. Hinds, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Albany County
(Lynch, J.), rendered May 30, 2014, which revoked defendant's
probation and imposed a sentence of imprisonment.

      In 2010, defendant pleaded guilty to attempted robbery in
the second degree stemming from his conduct – aided by another
person – in forcibly stealing property from an acquaintance.
Defendant was sentenced to time served, which consisted of six
months in jail, and a five-year term of probation was imposed
with certain enumerated conditions. In 2014, defendant was
arrested in connection with the armed robbery of a stranger,
during the course of which the victim was hit, threatened with a
gun and had his wallet and other personal items taken from him.
Thereafter, a violation of probation petition was filed against
                              -2-                106857

defendant, alleging that he had violated four conditions of his
probation – committing new criminal offenses, failing to report
to his probation officer on six separate occasions, using
marihuana and possessing a weapon. Following an evidentiary
hearing, County Court found that defendant indeed had violated
the cited terms of his probation, revoked his probation and
imposed a prison sentence of five years followed by three years
of postrelease supervision. Defendant now appeals.

      Defendant's primary argument upon appeal is that the
resentence imposed, which is less than the maximum permissible
sentence, is harsh and excessive. We disagree. The record
reflects that while defendant was given the opportunity to avoid
prison in connection with his 2010 guilty plea to a violent
felony, he thereafter failed to comply with several significant
terms and conditions of his probation. In addition to his
admitted use of marihuana and repeated failures to report,
defendant was arrested on serious charges in connection with yet
another forcible robbery. Consequently, notwithstanding certain
positive aspects of defendant's performance while on probation,
we find no abuse of discretion or extraordinary circumstances
warranting a reduction of the resentence in the interest of
justice (see People v McGregor, 119 AD3d 1235, 1236 [2014], lv
denied 25 NY3d 991 [2015]; People v Clark, 100 AD3d 1157, 1158
[2012], lv denied 20 NY3d 1010 [2013]).

      Finally, to the extent that defendant contends that the
underlying violation of probation "is not supported by sufficient
evidence," we are satisfied – upon reviewing the testimony
offered at the hearing – that the People established, by a
preponderance of the evidence, that defendant violated the terms
and conditions of his probation (see People v Eggsware, 125 AD3d
1057, 1057-1058 [2015], lv denied 25 NY3d 1162 [2015]; People v
Pixley, 117 AD3d 1102, 1103 [2014], lv denied 24 NY3d 1087
[2014]). Accordingly, the judgment is affirmed.

     McCarthy, J.P., Rose, Devine and Clark, JJ., concur.
                        -3-                  106857

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
