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

754
KA 10-00286
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

KERRY COLEMAN, DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARY ELLEN GILL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered December 3, 2009. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
incarceration.

     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
criminal contempt in the first degree (Penal Law § 215.51 [c]) and
sentencing him to a term of incarceration. Contrary to defendant’s
contention, the People established by the requisite preponderance of
the evidence at the violation hearing that he committed acts that
constitute harassment in the second degree and thus committed an
additional offense in violation of the terms and conditions of his
probation (see CPL 410.10 [2]; 410.70 [1], [3]; People v Bergman, 56
AD3d 1225, lv denied 12 NY3d 756; People v Schneider, 188 AD2d 754,
755-756, lv denied 81 NY2d 892).   We reject defendant’s further
contention that he was denied effective assistance of counsel based on
an alleged conflict of interest with defense counsel at the violation
hearing. Defendant failed to “show that ‘the conduct of his defense
was in fact affected by the operation of the conflict of interest,’ or
that the conflict ‘operated on’ the representation” (People v Ortiz,
76 NY2d 652, 657; see People v Konstantinides, 14 NY3d 1, 10).




Entered:    June 8, 2012                           Frances E. Cafarell
                                                   Clerk of the Court
