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

276
KA 13-01755
PRESENT: SCUDDER, P.J., LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOSEPH TARTAGLIA, DEFENDANT-APPELLANT.


LAW OFFICES OF JOSEPH D. WALDORF, P.C., ROCHESTER (JOSEPH D. WALDORF
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.) rendered September 19, 2013. 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 imposed on his conviction of course of sexual
conduct against a child in the second degree (Penal Law § 130.80 [1]
[b]), and resentencing him to a determinate term of imprisonment of
three years plus seven years of postrelease supervision. We reject
defendant’s contention that County Court erred in revoking his
probation. One of the conditions of probation required defendant to
“participate in a specialized treatment program for sex offenders as
directed by the probation officer until satisfactorily terminated from
said program. Satisfactory participation includes . . . progress
toward regular treatment goals.” Defendant was referred by his
probation officer to North Coast Counseling for sex offender
treatment, but he was discharged from that program because he did not
make “reasonable progress” in treatment based on his repeated failure
to accept responsibility for his sexual offense. The discharge
summary states that defendant admitted at times that he abused the
victim, while at other times he minimized or denied such conduct.

     Although defendant concedes that he was discharged from
treatment, he contends that, because he entered an Alford plea to the
sex offense, he should not be punished for failing to admit his guilt
of the underlying offense. We note as a preliminary matter that the
record does not establish that defendant entered an Alford plea.
Indeed, there is no mention of an Alford plea in the record, which
                                 -2-                           276
                                                         KA 13-01755

includes the transcript of the plea proceeding, and defendant did not
deny culpability or assert his innocence during the proceeding. Even
assuming, arguendo, that defendant entered an Alford plea, we would
reject his contention. In Matter of Silmon v Travis (95 NY2d 470,
472-473), a parolee who entered an Alford plea contended that the
parole board could not use his refusal to accept responsibility for
his actions as a reason to deny him release to parole. The Court of
Appeals rejected that contention, stating that “[t]he court’s
acceptance of his plea without an admission of culpability was not an
indication that the State viewed him as innocent” (id. at 475-476).
In a footnote, the Court cited with approval an out-of-state case in
which a court found that a probation revocation based on failure to
admit guilt was proper even though defendant entered an Alford plea
(see id. at 478 n 3).

     Finally, we reject defendant’s contention that his sentence is
unduly harsh and severe.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
