C., BRIAN, PEOPLE v , 956 N.Y.2d 736 ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1285
KA 11-00859
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BRIAN C., DEFENDANT-APPELLANT.
GENESEE VALLEY LEGAL AID, GENESEO (KELLEY PROVO OF COUNSEL), FOR
DEFENDANT-APPELLANT.
GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF
COUNSEL), FOR RESPONDENT.
Appeal from an adjudication of the Livingston County Court
(Dennis S. Cohen, J.), rendered March 17, 2011. The adjudication
revoked defendant’s sentence of probation and imposed a sentence of
imprisonment.
It is hereby ORDERED that the adjudication so appealed from is
unanimously affirmed.
Memorandum: Defendant was adjudicated a youthful offender based
upon his plea of guilty of attempted criminal contempt in the first
degree (Penal Law §§ 110.00, 215.51 [b] [v]), a class A misdemeanor,
and was sentenced to three years of probation. On appeal from an
adjudication revoking the sentence of probation and sentencing him to
one year of incarceration, defendant contends that the People failed
to establish by a preponderance of the evidence that defendant
violated the terms and conditions of his probation. We reject that
contention (see CPL 410.70 [1], [3]; People v Maldonado, 44 AD3d 793,
793-794, lv denied 9 NY3d 1035).
Two conditions of defendant’s probation were that he must not
commit further crimes or offenses and must not possess mood-altering
substances without a prescription. Defendant’s father found two pills
on defendant’s person and, after a pat search, a police officer found
in defendant’s pocket a package labeled “Manhattan Spice.” County
Court properly determined, based upon a preponderance of the evidence,
that defendant violated the terms and conditions of his probation.
Although there was no expert testimony with respect to the pills, nor
was testing performed on the pills, both the police officer who
conducted the pat search and a probation supervisor testified that,
based upon their training and experience, the pills that were received
in evidence were Adderall, and one of the pills was labeled to that
effect. The probation supervisor testified that defendant did not
-2- 1285
KA 11-00859
have a prescription for Adderall. The police officer testified that
Manhattan Spice was a legal, mind-altering drug, and the labeled
package of that drug was admitted in evidence.
We also reject defendant’s contention that his sentence is
illegal. Because defendant was adjudicated a youthful offender under
CPL 720.20 (1) (a), the six-month limitation in Penal Law § 60.02 (1)
did not apply and he was properly sentenced to one year of
imprisonment (see § 70.15 [1]).
Entered: December 21, 2012 Frances E. Cafarell
Clerk of the Court