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The People of the State of v. Jennie Fusco

State of New York Supreme Court, Appellate Division Third Judicial Department


January 5, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JENNIE FUSCO, APPELLANT.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered November 19, 2010, which revoked defendant's probation and imposed a sentence of incarceration.

The opinion of the court was delivered by: Stein, J.

MEMORANDUM AND ORDER

Calendar Date: November 15, 2011

Before: Spain, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ.

In 2009, defendant was convicted of petit larceny and sentenced to three years of probation. Defendant was also ordered to pay restitution, jointly and severally with her husband, a co-defendant, totaling $6,775.78. Restitution was to be paid in 29 monthly payments beginning in June 2009. In September 2010, defendant was $1,156.76 in arrears in her payments and a petition alleging a violation of the terms of her probation was filed. Following a hearing, County Court found a violation, revoked defendant's probation and resentenced her to eight months in jail, with the unpaid restitution remaining as part of her sentence. Defendant appeals, and we affirm.

We reject defendant's contention that County Court abused its discretion in revoking her probation and imposing a term of incarceration. Defendant testified that, although she admittedly had failed to make the required monthly payments, she had worked out an agreement with her probation officer that she could make up for her failure by making subsequent double payments without being in violation of her probation. However, her probation officer denied that such an agreement existed. It is well settled that a violation of probation proceeding is summary in nature, and County Court's credibility determinations thereat are entitled to great deference (see People v DeMarco, 60 AD3d 1107, 1108 [2009]). Inasmuch as defendant admitted during the hearing that she had violated a condition of her probation, we find that County Court's finding of a violation was supported by a preponderance of the evidence (see CPL 410.70 [3]; People v Bender, 24 AD3d 819, 820 [2005]; People v Parsons, 15 AD3d 728, 728 [2005]). Accordingly, County Court was authorized to revoke defendant's probation and sentence her for the original crime (see CPL 410.70 [5]; People v Costanza, 36 AD3d 829, 830 [2007], lv denied 8 NY3d 945 [2007]). Because defendant has completed her sentence, her claim that her jail sentence was harsh and excessive is moot (see People v Mainville, 78 AD3d 1421, 1422 [2010], lv denied 16 NY3d 833 [2011]; People v Buskey, 62 AD3d 1164, 1165 [2009]).

Defendant's remaining contentions have been considered and are found to be without merit.

Spain, J.P., Lahtinen, Malone Jr. and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120105

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