People v. Chiarappa

• Decision Date: 12 November 2010
• Citation: 910 N.Y.S.2d 799,78 A.D.3d 1614
• Parties: The PEOPLE of the State of New York, Respondent, v. William CHIARAPPA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 799
78 A.D.3d 1614

The PEOPLE of the State of New York, Respondent,
v.
William CHIARAPPA, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 12, 2010.

910 N.Y.S.2d 800

Frank H. Hiscock Legal Aid Society, Syracuse (Gerald T. Barth of Counsel), for Defendant-Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: MARTOCHE, J.P., CENTRA, CARNI, LINDLEY, AND PINE, JJ.

MEMORANDUM:

78 A.D.3d 1615

Defendant appeals from a judgment that revoked the sentence of probation imposed upon his conviction of driving while intoxicated (Vehicle and Traffic Law § 1192[3] ) and sentenced him to an indeterminate term of incarceration. Defendant failed to preserve for our review his contention that he was denied the right to present a defense at his probation revocation hearing ( see People v. Melendez, 8 N.Y.3d 886, 832 N.Y.S.2d 893, 865 N.E.2d 1; People v. Dorn, 71 A.D.3d 1523, 895 N.Y.S.2d 906) and, in any event, we conclude that defendant was " 'afforded [the requisite] opportunity to be heard' " ( People v. Perna, 74 A.D.3d 1807, 1807, 902 N.Y.S.2d 870). County Court properly refused to consider the testimony of defendant concerning matters extraneous to the issue whether he failed to report to his probation officer ( see generally People v. Grace, 60 A.D.3d 432, 433, 874 N.Y.S.2d 94, lv. denied 12 N.Y.3d 854, 881 N.Y.S.2d 665, 909 N.E.2d 588; People v. Lawhorn, 21 A.D.3d 1289, 1291, 804 N.Y.S.2d 517). In addition, the fact that the court briefly mentioned another charge did not deny defendant his right to present a defense with respect thereto inasmuch as the court did not sentence him based upon that charge ( see generally People v. Rivers, 262 A.D.2d 108, 691 N.Y.S.2d 488, lv. denied 94 N.Y.2d 828, 702 N.Y.S.2d 599, 724 N.E.2d 391). Also contrary to the contention of defendant, the court was entitled to credit the testimony of the probation officer over that of defendant ( see Perna, 74 A.D.3d at 1807-1808, 902 N.Y.S.2d 870), and we conclude that the People met their burden of proving by a preponderance of the evidence...