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

165
KA 12-01601
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DARYL D. WILLIAMS, SR., DEFENDANT-APPELLANT.


REBECCA CURRIER, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered July 5, 2012. The judgment revoked the probation
component of defendant’s split sentence of incarceration and probation
and imposed a lengthier indeterminate term of incarceration.

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

     Memorandum: Defendant appeals from a judgment revoking the
probation component of the split sentence of incarceration and
probation previously imposed upon his conviction of robbery in the
third degree (Penal Law § 160.05) and sentencing him to a lengthier
indeterminate term of incarceration. County Court did not abuse its
discretion in denying defendant’s request for an adjournment of the
violation of probation hearing to enable him to obtain a copy of the
plea and sentencing transcripts from the underlying conviction (see
People v Strauts, 67 AD3d 1381, 1381, lv denied 14 NY3d 773; see also
People v Darryl P., 105 AD3d 1439, 1440, lv denied 21 NY3d 1041).
Contrary to defendant’s further contention, the People established by
a preponderance of the evidence that he violated the condition of his
probation that he abstain from the use of intoxicating beverages (see
People v Flinn, 92 AD3d 1217, 1217-1218, lv denied 18 NY3d 994; People
v Jones, 50 AD3d 1058, 1059, lv denied 10 NY3d 936). The State
Trooper who arrested defendant for driving while intoxicated after he
crashed his vehicle testified at the hearing that defendant tested
positive for alcohol on the preliminary screening device, failed three
sobriety tests, and admitted that he purchased beer. Also contrary to
defendant’s contention, the sentence is not unduly harsh or severe.
We have considered defendant’s remaining contentions and conclude that
they are without merit.

Entered:    February 14, 2014                      Frances E. Cafarell
                                                   Clerk of the Court
