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The People of the State of New York v. David Brand

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


November 15, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID BRAND, APPELLANT.

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered May 27, 2011, which revoked defendant's probation and imposed a sentence of imprisonment.

MEMORANDUM AND ORDER

Calendar Date: September 26, 2012

Before: Rose, J.P., Lahtinen, Stein, McCarthy and Garry, JJ.

Following defendant's plea of guilty to the crime of driving while intoxicated, he was sentenced to five years of probation. Thereafter, a petition alleging a violation of probation was filed against defendant. After defendant entered an admission to violating the terms and conditions of his probation, County Court revoked defendant's probation and sentenced him, in accordance with the plea agreement, to a prison term of 1b to 5 years. Defendant now appeals.

We affirm. Defendant's sole argument on appeal is that his resentence is harsh and excessive. We are unpersuaded. The record demonstrates that defendant has a lengthy criminal history and that he failed to maintain his sobriety or follow through with treatment programs despite repeated opportunities to do so (see People v Ebert, 81 AD3d 1042 [2011], lv denied 17 NY3d 794 [2011]). 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 Setzer, 83 AD3d 1123, 1123 [2011]).

Rose, J.P., Lahtinen, Stein, McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121115

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