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The People of the State of New York v. David B. Clark

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 B. CLARK, APPELLANT.

Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.), rendered March 15, 2012, which revoked defendant's probation and imposed a sentence of imprisonment.

MEMORANDUM AND ORDER

Calendar Date: September 26, 2012

Before: Peters, P.J., Mercure, Malone Jr., Kavanagh and Egan Jr., JJ.

In satisfaction of a four-count indictment, defendant pleaded guilty to one count of insurance fraud in the third degree and was sentenced to a period of five years of probation in the drug court program. Thereafter, five violation of probation petitions were filed asserting numerous violations, including, among other things, allegations that defendant consumed alcohol, tampered with his "Scram" bracelet, was charged with criminal possession of a weapon in the fourth degree and failed to attend a substance abuse treatment program. Subsequently, defendant admitted violating certain conditions of his probation and County Court discharged him from probation.

Defendant then was resentenced, in accordance with the plea bargain, to a prison term of 1 to 3 years. This appeal followed.

We affirm. Contrary to defendant's argument, we do not find the resentence to be harsh and excessive. The record indicates that defendant was unable to comply with the terms of his probation despite repeated opportunities to do so (see People v Harrison, 93 AD3d 995 [2012], lv denied 19 NY3d 961 [2012]). Consequently, 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, 1449--1450 [2011], lv denied 17 NY3d 860 [2011]; People v Savage, 72 AD3d 1292 [2010]).

Peters, P.J., Mercure, Malone Jr., Kavanagh and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121115

© 1992-2012 VersusLaw Inc.



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