State of New York Supreme Court, Appellate Division Third Judicial Department
March 8, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
LARRY G. PAYNE JR., APPELLANT.
Appeal from a judgment of the County Court of Cortland County (Ames, J.), rendered January 4, 2011, which revoked defendant's probation and imposed a sentence of imprisonment.
MEMORANDUM AND ORDER
Calendar Date: January 23, 2012
Before: Rose, J.P., Lahtinen, Stein, McCarthy and Garry, JJ.
In August 2008, defendant pleaded guilty to, among other things, gang assault in the second degree as a youthful offender and was sentenced to a period of five years of probation. In January 2010, defendant was convicted of criminal contempt in the first degree and was again sentenced to a five-year term of probation. Thereafter, in September 2010, a violation of probation petition was filed alleging numerous violations, including the failure to report to his probation officer, committing the crime of criminal mischief in the third degree and failure to participate in substance abuse treatment. Subsequently, defendant admitted violating his probation. County Court discharged him from probation and resentenced him on the underlying crimes to concurrent terms of 1 to 3 years in prison. Defendant now appeals, and we affirm.
Upon review of the record, we do not find the resentence to be harsh or excessive. Defendant was unable to comply with the terms of his probation despite repeated opportunities to do so (see People v Smith, 87 AD3d 1203, 1203 ). Under the circumstances, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the resentence in the interest of justice (see People v Kornell, 85 AD3d 1449, 1450 , lv denied 17 NY3d 860 ).
Rose, J.P., Lahtinen, Stein, McCarthy and Garry, JJ., concur.
ORDERED that the judgment is affirmed.
Robert D. Mayberger Clerk of the Court
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