ROBERTSON, SHELBY, PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
851
KA 14-00392
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SHELBY ROBERTSON, DEFENDANT-APPELLANT.
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.
Farkas, J.), rendered June 26, 2012. 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 upon his conviction of possessing a
sexual performance by a child (Penal Law § 263.16) and sentencing him
to an indeterminate term of incarceration. Contrary to defendant’s
contention, we conclude that the People established by the requisite
preponderance of the evidence that defendant violated the terms and
conditions of his probation (see CPL 410.70 [3]; People v Ortiz, 94
AD3d 1436, 1436, lv denied 19 NY3d 999). The evidence adduced at the
hearing established that defendant violated the terms and conditions
of his probation by possessing a computer and computer parts, failing
to “attend, actively participate and remain in” a required treatment
program, and failing to comply with the Sex Offender Registration Act
requirement regarding registration of a change of address (see
Correction Law § 168-f [4]).
Finally, the sentence is not unduly harsh or severe.
Entered: July 2, 2015 Frances E. Cafarell
Clerk of the Court