People v Cotter

People v Cotter 2016 NY Slip Op 06273 Decided on September 29, 2016 Appellate Division, Third 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 and Entered: September 29, 2016

[*1]THE PEOPLE OF THE STATE OF NEW YORK,

v

JOSHUA A. COTTER, Appellant.

Calendar Date: September 12, 2016
Before: Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.

Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.

Mary E. Rain, District Attorney, Canton (Peter F. Stroe of counsel), for respondent.

Devine, J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 3, 2015, which revoked defendant's probation and imposed a sentence of imprisonment.

In September 2010, defendant was sentenced in Wayne County to six months in jail and five years of probation, following his guilty plea to attempted burglary in the second degree, burglary in the third degree and three counts of petit larceny. His probation supervision was transferred to St. Lawrence County in November 2010.

In March 2014, defendant admitted to violating the conditions of his probation by failing to report to his probation

officer on five occasions in 2013 and failing to report at all during 2014, by being discharged from a chemical dependency treatment program and for using marihuana. County Court adjourned resentencing to provide defendant with an opportunity to complete a substance abuse treatment program. In September 2014, after defendant's urine tested positive for oxycodone and his probation officer reported that he noticed a strong smell of marihuana during a visit to defendant's residence, resentencing was again adjourned to allow defendant another opportunity to complete the treatment program. Defendant reappeared before County Court in December 2014 after he tested positive for barbituates and oxycodone and, in addition, missed an appointment with a chemical dependency treatment provider. County Court offered to adjourn resentencing upon the understanding that anything short of a successful stint in drug treatment [*2]would result in the revocation of probation and the imposition of an aggregate prison sentence of 6 to 10 years to be followed by three years of postrelease supervision. Defendant agreed, but was unsuccessfully discharged from a substance abuse treatment program in February 2015. County Court thereafter revoked defendant's probation and resentenced him as promised. Defendant now appeals.

Defendant's sole contention on appeal is that his sentence is harsh and excessive. We disagree. Despite being afforded numerous opportunities to avoid prison, he was unable to comply with the conditions of his probation. On the record before us, we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Roach, 120 AD3d 1506, 1506 [2014]; People v Regan, 108 AD3d 983, 984 [2013]).

Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed.