People v. Miller

• Decision Date: 13 December 2001
• Docket Number: 12747,3
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v SCOTT MILLER, Appellant. 12747 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

THE PEOPLE OF THE STATE OF NEW YORK, Respondent v SCOTT MILLER, Appellant

12747

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: November 14, 2001

Decided and Entered: December 13, 2001

Livingston L. Hatch, Keeseville, for appellant.

Penelope D. Clute, District Attorney, Plattsburgh, for respondent.

MEMORANDUM AND ORDER

Before: Mercure, J.P., Crew III, Carpinello, Mugglin and Rose, JJ.

Rose, J.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered April 18, 2000, which revoked defendant's probation and imposed a sentence of imprisonment.

In October 1997, defendant was adjudicated a youthful offender upon his plea of guilty of attempted robbery in the second degree and he was sentenced to a five-year period of probation. Following his arrest on a driving while intoxicated charge in September 1998, defendant admitted to his probation officer that he had consumed a substantial amount of alcohol in violation of a condition of probation, but no formal violation of probation was alleged at that time. In November 1999, defendant was arrested on a number of charges, including attempted assault in the second degree, arising out of an altercation with his girlfriend. Shortly thereafter, he was again arrested and charged with criminal contempt in the second degree arising out of his alleged failure to obey an order of protection.

Based upon a petition alleging that defendant violated the conditions of his probation as a result of the events in September 1998 and November 1999, County Court conducted a hearing at which defendant and the girlfriend presented conflicting testimony regarding the relevant events that occurred in November 1999. The court found that defendant had violated the conditions of his probation, revoked probation and imposed a prison sentence of 1 to 4 years. Defendant appeals.

"The People were only required to establish a violation by a preponderance of the evidence * * * and the commission of an additional offense constitutes a ground for revocation * * *" (People v Johnson, 208 A.D.2d 1051, 1052, lv denied 85 N.Y.2d 910 [citations omitted]). It is clear from County Court's decision that the court credited the testimony of defendant's girlfriend over that of defendant and our review of the record discloses that, in addition to establishing defendant's commission of attempted assault in the second degree, her testimony provided no basis for the...