State of New York Supreme Court, Appellate Division Third Judicial Department
April 7, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
WILLARD N. SETZER, APPELLANT.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered October 23, 2009, which revoked defendant's probation and imposed a sentence of imprisonment.
The opinion of the court was delivered by: Lahtinen, J.
MEMORANDUM AND ORDER
Calendar Date: February 7, 2011
Before: Spain, J.P., Lahtinen, Garry and Egan Jr., JJ.
Defendant pleaded guilty to sexual abuse in the first degree in 2005 and was sentenced to 10 years of probation. In 2009, defendant was arrested and charged with, among other things, unlawfully fleeing from a police officer in a motor vehicle and resisting arrest, prompting the filing of a violation of probation petition. Following a hearing, County Court found a violation, revoked defendant's probation and resentenced him to a prison term of five years, to be followed by three years of postrelease supervision. Defendant now appeals.
Defendant's contention that County Court erred in not ordering an updated presentence investigation report prior to resentencing him is unpreserved for our review and, in any event, we would find no abuse of discretion in County Court sentencing defendant without an updated report (see People v Ruff, 50 AD3d 1167, 1168 ; People v Kaulback, 46 AD3d 1027, 1028 ; People v Walts, 34 AD3d 1043, 1044 , lv denied 8 NY3d 850 ).
Further, based upon our review of the transcript of the hearing, we conclude that County Court's determination that defendant's sentence of probation should be revoked was supported by a preponderance of the evidence (see CPL 410.70 ; People v Cruz, 35 AD3d 898, 899 , lv denied 8 NY3d 845 ; People v Ogden, 237 AD2d 652, 652 ). Finally, we have considered defendant's remaining claim that his resentence was harsh and excessive and find it unavailing (see People v Savage, 72 AD3d 1292, 1292 ).
Spain, J.P., Garry and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed.
Robert D. Mayberger Clerk of the Court
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