State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 27, 2016 106783 

107617

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JOSEPH HARRIS,

Appellant.

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Calendar Date: September 15, 2016

Before: Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.

__________

Aaron A. Louridas, Delmar, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A.

Douthat of counsel), for respondent.

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Egan Jr., J.

Appeals (1) from a judgment of the Supreme Court (Lawliss,

J.), rendered June 17, 2013 in Clinton County, convicting

defendant upon his plea of guilty of the crime of sexual abuse in

the first degree, and (2) from a judgment of said court, rendered

July 22, 2013, which revoked defendant's probation and imposed a

sentence of imprisonment.

In full satisfaction of a three-count indictment, defendant

pleaded guilty to a single count of sexual abuse in the first

degree in exchange for the agreed-upon sentence of six months in

jail and a 10-year term of probation. The underlying charges

stemmed from an incident wherein defendant engaged in sexual

contact with an infant while under the direct supervision of a
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caseworker from the local department of social services. Prior

to pleading guilty, defendant was advised that he would be

subject to a fine, as well as certain mandatory fees and

surcharges. Defendant agreed to the terms of the plea agreement,

and the matter was adjourned for sentencing.

On June 17, 2013, defendant appeared for sentencing, at

which time he consented to being classified as a risk level three

sex offender and, according to the sentencing minutes,

acknowledged receipt of and executed a document outlining the

terms and conditions of his probation. Although such document

does not appear in the record on appeal, there is no dispute that

the previously imposed fine, fees and surcharges (totaling

$2,000) were due at the time of sentencing1 and, further, that

defendant was required to refrain from consuming any prescription

medications that had not been specifically prescribed for his

use. The agreed-upon sentence thereafter was imposed and, after

receiving credit for time served, defendant was released to

probation.

Two days later, defendant appeared for his initial

appointment with the Probation Department, at which time he

tested positive for opiates. Based upon his positive drug test

and his failure to pay the moneys due at the time of sentencing,

defendant was charged with violating the terms of his probation. 

Defendant waived a hearing and admitted that he willfully

violated the foregoing conditions. Supreme Court thereafter

revoked defendant's probation and sentenced him to six years in

prison followed by 10 years of postrelease supervision. 

Defendant now appeals from the June 17, 2013 judgment of

conviction, as well as from the July 22, 2013 judgment revoking

his probation and imposing a sentence of imprisonment.

Preliminarily, inasmuch as defendant has not briefed any

issues relative to the June 17, 2013 judgment of conviction, we

deem his appeal from that judgment to be abandoned (see People v

1 Defendant does not claim that he was unaware – or

received inadequate notice – of this requirement.
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Barrett, 39 AD3d 1088, 1089 [2007], lv denied 9 NY3d 863 [2007]). 

As for the violation of probation, although defendant

acknowledges that he waived a hearing and thereafter readily

admitted to the underlying conduct, he now contends that the

subject violations were not willful and, hence, Supreme Court

should not have revoked his probation. Even assuming, without

deciding, that – despite defendant's waiver of a hearing (and his

subsequent admissions to the violations alleged) and Supreme

Court's finding that such admissions indeed established that

defendant willfully violated the terms and conditions of his

probation – Supreme Court nonetheless was required to inquire as

to defendant's ability to pay the fines and surcharges levied

against him (compare People v Songa, 132 AD3d 1071, 1073 [2015];

People v Souffrance, 94 AD3d 1024, 1024-1025 [2012]; see

generally People v Amorosi, 96 NY2d 180, 184 [2001]), the fact

remains that defendant admittedly consumed a prescription pain

reliever that was not prescribed for him. Defendant's admission

in this regard is, standing alone, sufficient to support the

revocation of his probation (see People v Romeo, 9 AD3d 744, 745

[2004]; People v Meyer, 1 AD3d 721, 721 [2003], lv denied 1 NY3d

631 [2004]; see also People v Fusco, 91 AD3d 984, 985 [2012];

People v Bender, 24 AD3d 819, 820 [2005]; People v Parsons, 15

AD3d 728, 728 [2005]). To the extent that defendant's proffered

excuse for his conduct is properly before us, we are not

persuaded that defendant "demonstrated either that he acted in

good faith in carrying out the terms of his probation or that the

violation was because of factors beyond his control" (People v

Mainville, 78 AD3d 1421, 1422 [2010] [internal quotation marks

and citation omitted], lv denied 16 NY3d 833 [2011]). 

Accordingly, Supreme Court's judgments are affirmed.

Peters, P.J., Lynch, Rose and Aarons, JJ., concur.
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ORDERED that the judgments are affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court