        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

956
KA 14-00759
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER J. FREEMAN, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (CARA A. WALDMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (MELANIE J. BAILEY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered March 17, 2014. The judgment revoked defendant’s
sentence of probation and imposed a sentence of imprisonment.

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

     Memorandum: Defendant was convicted of driving while intoxicated
as a class E felony (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c]
[i] [A]) and driving while intoxicated, per se, as a class E felony
(§§ 1192 [2]; 1193 [1] [c] [i] [A]). The court initially imposed a
sentence of two concurrent terms of imprisonment of one year, to be
followed by five years of probation. Defendant served his sentence of
imprisonment, and thereafter allegedly committed several violations of
the terms and conditions of his probation. Following a hearing,
County Court revoked the probation component of defendant’s sentence
and imposed concurrent, indeterminate terms of imprisonment of 1a to
4 years. Defendant now appeals from the judgment associated
therewith.

     Contrary to defendant’s contention, the court “properly
determined that the People met their burden of establishing by a
preponderance of the evidence that defendant violated the terms and
conditions of his probation” (People v Ortiz, 94 AD3d 1436, 1436, lv
denied 19 NY3d 999; see CPL 410.70 [3]; People v Wheeler, 99 AD3d
1168, 1169-1170, lv denied 20 NY3d 989). In addition to other
evidence, the People offered testimony from defendant’s probation
officer and a police officer, both of whom “testified to their direct,
personal knowledge of the facts and circumstances surrounding
defendant’s violation[s] of the terms of probation” (People v Hogan,
284 AD2d 655, 655-656, lv denied 97 NY2d 641).
                                 -2-                           956
                                                         KA 14-00759

     Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
