## St at e of Ne w York Supre me Court , Appe llat e D i vi s i on T h i rd J udi cial D e

part me n t

Decided and Entered: October 27, 2016 106783 107617

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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.

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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-2- 106783 107617
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 sentencing 1 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.-3- 106783 107617
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.-4- 106783 107617
ORDERED that the judgments are affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court