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

488
KA 10-00830
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

YOKOHIRO VIDAL ORTIZ, ALSO KNOWN AS ORTIZ,
DEFENDANT-APPELLANT.


JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (HEATHER A. PARKER
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered September 8, 2009. 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 appeals from a judgment revoking the
sentence of probation previously imposed upon his conviction of
assault in the second degree (Penal Law § 120.05 [6]) and criminal
mischief in the third degree (§ 145.05 [2]) and sentencing him to
concurrent terms of imprisonment. Contrary to defendant’s contention,
County 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 (see People v
Pringle, 72 AD3d 1629, 1629, lv denied 15 NY3d 855; People v Donohue,
64 AD3d 1187, 1188; People v Bergman, 56 AD3d 1225, lv denied 12 NY3d
756). The People provided the necessary “residuum of competent legal
evidence” (Pringle, 72 AD3d at 1630 [internal quotation marks
omitted]), and “the decision to revoke his probation will not be
disturbed, [absent a] clear abuse of discretion” (Bergman, 56 AD3d
1225 [internal quotation marks omitted]).




Entered:   April 20, 2012                          Frances E. Cafarell
                                                   Clerk of the Court
