People v. Garey

• Decision Date: 16 October 1997
• Citation: 664 N.Y.S.2d 629,243 A.D.2d 844
• Parties: , 1997 N.Y. Slip Op. 8530 The PEOPLE of the State of New York, Respondent, v. Gaston GAREY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 629

664 N.Y.S.2d 629

243 A.D.2d 844, 1997 N.Y. Slip Op. 8530

The PEOPLE of the State of New York, Respondent, v. Gaston GAREY, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 16, 1997.

Oliver Bickel, Plattsburgh, for appellant.

Penelope D. Clute, District Attorney (Mark E. Anderson, of counsel), Plattsburgh, for respondent.

Before MIKOLL, J.P., and WHITE, CASEY, YESAWICH and SPAIN, JJ.

CASEY, Justice.

Appeal from a judgment of the County Court of Clinton County (Lewis, J.), rendered April 3, 1996, which revoked defendant's probation and imposed a sentence of imprisonment.

On July 31, 1995, defendant was sentenced to five years' probation following his guilty plea to the crime of assault in the second degree stemming from injuries he inflicted upon the victim with a beer bottle. The terms and conditions of defendant's probation provided that he, inter alia, refrain from the use of alcohol, attend an alcohol treatment program, pay restitution and obey local, State and Federal laws. Defendant was thereafter charged with, and found guilty of, violating various terms of his probation and, as a result, defendant's probation was revoked and he was resentenced to a prison term of 2 to 6 years. Defendant now appeals.

Initially, we reject defendant's contention that he was denied due process of law because the last four or five pages of the probation hearing transcript were lost. Defendant has failed to show that he was prejudiced thereby inasmuch as the available record permits adequate review of the issues raised by defendant (see, People v. Harrison, 85 N.Y.2d 794, 796, 628 N.Y.S.2d 939, 652 N.E.2d 638; People v. Martinez, 237 A.D.2d 217, 655 N.Y.S.2d 33, 34; People v. Yanowitch, 227 A.D.2d 225, 642 N.Y.S.2d 261, lv. denied 88 N.Y.2d 997, 649 N.Y.S.2d 404, 672 N.E.2d 630; People v. Rick, 224 A.D.2d 790, 637 N.Y.S.2d 526, lv. denied 88 N.Y.2d 852, 644 N.Y.S.2d 698, 667 N.E.2d 348). Nor has he demonstrated that these pages contain genuine appealable issues (see, People v. Griffin, 135 A.D.2d 730, 731, 522 N.Y.S.2d 632).

We further find that the testimony adduced at the probation hearing established by a preponderance of the evidence that defendant violated the terms of his probation (see, CPL 410.70[3]; see also, People v. Compagni, 241 A.D.2d 573, 660 N.Y.S.2d 1014). The record reveals that defendant was aware of and understood the conditions of his probation. Nevertheless, defendant's probation officer testified that defendant had missed three restitution payments and he failed to participate in an alcohol treatment program. In addition, another probation officer, whose husband worked with defendant, testified that she observed defendant consuming alcohol at two separate company events. Furthermore,...