State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 29, 2016 107383 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

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.

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
-2- 107383 

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 would

result in the revocation of probation and the imposition of an

aggregate prison sentence of 6b 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.
-3- 107383 

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court