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The People of the State of New York, Respondent v. Kerry Coleman

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


June 8, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
KERRY COLEMAN, DEFENDANT-APPELLANT.

Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered December 3, 2009.

People v Coleman

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 June 8, 2012

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.

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

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 criminal contempt in the first degree (Penal Law § 215.51 [c]) and sentencing him to a term of incarceration. Contrary to defendant's contention, the People established by the requisite preponderance of the evidence at the violation hearing that he committed acts that constitute harassment in the second degree and thus committed an additional offense in violation of the terms and conditions of his probation (see CPL 410.10 [2]; 410.70 [1], [3]; People v Bergman, 56 AD3d 1225, lv denied 12 NY3d 756; People v Schneider, 188 AD2d 754, 755-756, lv denied 81 NY2d 892).We reject defendant's further contention that he was denied effective assistance of counsel based on an alleged conflict of interest with defense counsel at the violation hearing. Defendant failed to "show that the conduct of his defense was in fact affected by the operation of the conflict of interest,' or that the conflict operated on' the representation" (People v Ortiz, 76 NY2d 652, 657; see People v Konstantinides, 14 NY3d 1, 10).

Entered: June 8, 2012

Frances E. Cafarell Clerk of the Court

20120608

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