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The People of the State of New York, Respondent v. Yokohiro Vidal Ortiz

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 20, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
YOKOHIRO VIDAL ORTIZ, ALSO KNOWN AS ORTIZ, DEFENDANT-APPELLANT.

Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered September 8, 2009.

People v Ortiz

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 20, 2012

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

The judgment revoked defendant's sentence of probation and imposed a sentence of imprisonment.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment revoking the sentence of probation previously imposed upon his conviction of assault in the second degree (Penal Law § 120.05 [6]) and criminal mischief in the third degree (§ 145.05 [2]) and sentencing him to concurrent terms of imprisonment. Contrary to defendant's contention, County Court properly determined that the People met their burden of establishing by a preponderance of the evidence that defendant violated the terms and conditions of his probation (see People v Pringle, 72 AD3d 1629, 1629, lv denied 15 NY3d 855; People v Donohue, 64 AD3d 1187, 1188; People v Bergman, 56 AD3d 1225, lv denied 12 NY3d 756). The People provided the necessary "residuum of competent legal evidence" (Pringle, 72 AD3d at 1630 [internal quotation marks omitted]), and "the decision to revoke his probation will not be disturbed, [absent a] clear abuse of discretion" (Bergman, 56 AD3d 1225 [internal quotation marks omitted]).

Entered: April 20, 2012

Frances E. Cafarell Clerk of the Court

20120420

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