People v. McQuality

Citation95 A.D.3d 1369,943 N.Y.S.2d 305,2012 N.Y. Slip Op. 03480
PartiesThe PEOPLE of the State of New York, Respondent, v. Andrew C. McQUALITY, Appellant.
Decision Date03 May 2012
CourtNew York Supreme Court Appellate Division

2012 N.Y. Slip Op. 03480
943 N.Y.S.2d 305
95 A.D.3d 1369

The PEOPLE of the State of New York, Respondent,
v.
Andrew C. McQUALITY, Appellant.

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

May 3, 2012.


[943 N.Y.S.2d 305]

Marcy I. Flores, Warrensburg, for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Before: PETERS, P.J., ROSE, LAHTINEN, MALONE JR. and KAVANAGH, JJ.

PETERS, P.J.

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered November 3, 2010, which revoked defendant's probation and imposed a sentence of imprisonment.

Defendant was convicted of criminal possession of a weapon in the fourth degree and sentenced to three years of probation. As a condition of his probation, he was required “to abstain from the purchase, use or possession of alcoholic beverages, marihuana, controlled substances or illegal drug[s].” Soon thereafter, defendant provided his probation officer with a urine sample that tested positive for marihuana, and he executed a written admission to having tested positive for marihuana on that date and to having consumed marihuana in direct violation of a condition of his probation. As a result, a declaration of delinquency was issued and, following a hearing, County Court found that defendant had violated a condition of his probation, revoked his probation and sentenced him to 365 days in jail. He now appeals, and we affirm.

We reject defendant's contention that there was insufficient evidence establishing that he violated a condition of his probation. “A court may revoke a defendant's probation provided the ‘defendant has been afforded an opportunity to be heard and the court determines by a preponderance of the evidence that a condition of the probation has been violated’ ”

[943 N.Y.S.2d 306]

( People v. Wells, 69 A.D.3d 1228, 1229, 894 N.Y.S.2d 213 [2010], quoting People v. Jangrow, 34 A.D.3d 991, 991–992, 823 N.Y.S.2d 627 [2006]; see People v. Bevilacqua, 91 A.D.3d 1120, 1120, 936 N.Y.S.2d 397 [2012] ). At the hearing, defendant's probation officer testified that defendant's probationary period began on October 19, 2009, that a condition of his probation was to refrain from drug use, and that he tested positive for marihuana on October 27, 2009. To the extent that defendant claims that the probation officer's testimony as to the results of the drug test constituted hearsay, we note that defendant himself conceded both during...

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  • People v. Galan
    • United States
    • New York Supreme Court Appellate Division
    • 9 d3 Abril d3 2014
    ...provided him with constitutionally deficient advice ( see People v. Obeya, 110 A.D.3d 1382, 1383, 974 N.Y.S.2d 613;People v. Glasgow, 95 A.D.3d at 1369, 943 N.Y.S.2d 674;People v. Argueta, 46 A.D.3d 46, 51, 844 N.Y.S.2d 63;cf. United States v. Couto, 311 F.3d 179, 188 [2d Cir.], cert. denie......
  • People v. Dudley
    • United States
    • New York Supreme Court Appellate Division
    • 8 d4 Novembro d4 2012
    ...sentence of probation should [100 A.D.3d 1104]be revoked was supported by a preponderance of the evidence ( see People v. McQuality, 95 A.D.3d 1369, 1370, 943 N.Y.S.2d 305 [2012];People v. Rockefeller, 79 A.D.3d 1527, 913 N.Y.S.2d 417 [2010],lv. denied16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.......
  • People v. Kislowski
    • United States
    • New York Supreme Court Appellate Division
    • 8 d4 Dezembro d4 2016
    ...Hare, 124 A.D.3d 1148, 1148, 2 N.Y.S.3d 296 [2015], lv. denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 [2015] ; People v. McQuality, 95 A.D.3d 1369, 1370, 943 N.Y.S.2d 305 [2012], lv. denied 20 N.Y.3d 1013, 960 N.Y.S.2d 356, 984 N.E.2d 331 [2013] ). The term and condition at issue here......
  • People v. Pixley
    • United States
    • New York Supreme Court Appellate Division
    • 1 d4 Maio d4 2014
    ...of the sentence in the interest of justice ( see People v. Filipowicz, 111 A.D.3d at 1023, 974 N.Y.S.2d 653;People v. McQuality, 95 A.D.3d 1369, 1371, 943 N.Y.S.2d 305 [2012],lv. denied20 N.Y.3d 1013, 960 N.Y.S.2d 356, 984 N.E.2d 331 [2013] ). Defendant's remaining contentions have been exa......
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