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

77
KA 10-02199
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DIANA M. FLINN, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered July 2, 2010. 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: In appeal No. 1, defendant appeals from a judgment
revoking the sentence of probation previously imposed upon her
conviction of felony driving while intoxicated (Vehicle and Traffic
Law § 1192 [3]; § 1193 [1] [c] [former (i)]) and imposing a sentence
of one year in jail based on her violation of the terms and conditions
of her probation. In appeal No. 2, defendant appeals from a judgment
revoking the sentence of probation previously imposed upon her
conviction of assault in the second degree (Penal Law § 120.05 [1])
and imposing a sentence of imprisonment based on her violation of the
terms and conditions of her probation.

     We reject the contention of defendant in each appeal that the
People failed to establish by a preponderance of the evidence that
defendant violated the terms and conditions of her probation (see CPL
410.70 [1], [3]; People v Donohue, 64 AD3d 1187; People v Bergman, 56
AD3d 1225, lv denied 12 NY3d 756). The People established that
defendant operated a motor vehicle without the written permission of
County Court and that she consumed alcoholic beverages before doing so
in violation of the terms and conditions of her probation. Contrary
to defendant’s further contention in appeal No. 2, the sentence is not
unduly harsh or severe.
Entered: February 10, 2012                      Frances E. Cafarell
                                                Clerk of the Court
