Calendar Date: May 29, 2018Before: Garry, P.J., McCarthy, Clark, Rumsey and Pritzker, JJ.__________The Kindlon Law Firm, PLLC, Albany (Lee C. Kindlon ofcounsel), for appellant.P. David Soares, District Attorney, Albany (Vincent Starkof counsel), for respondent.__________Garry, P.J.Appeal from a judgment of the County Court of AlbanyCounty (Lynch, J.), rendered July 2, 2015, which revokeddefendant’s probation and imposed a sentence of imprisonment.In November 2014, defendant was adjudicated a youthfuloffender and was sentenced in Rensselaer County to five years ofprobation following his guilty plea to criminal possession of aweapon in the second degree. The charge stemmed from defendantand three codefendants firing shots at a residence. In February2015, defendant pleaded guilty to attempted criminal sale of acontrolled substance in the third degree in Albany County and wassentenced, as an adult, to five years of probation, with thesentence to run concurrently with the Rensselaer County sentence.In May 2015, the Albany County Department of Probationfiled two violation of probation petitions, both alleging thatdefendant had violated the conditions of his probation by, amongother things, being charged with possessing a weapon on or aboutApril 18, 2015 and violating curfew on two occasions. Followinga hearing, County Court found that defendant had violated theconditions of his probation requiring defendant to observe acurfew and refrain from possessing any firearms or engaging inillegal activity. County Court thereafter revoked defendant’sprobation and resentenced defendant to 1 a to 4 years in prisonon the criminal possession of a weapon conviction and 5½ years inprison, to be followed by two years of postrelease supervision,on the attempted criminal sale of a controlled substanceconviction, with the sentences to run consecutively. Defendantappeals.We affirm. “[A] violation of probation proceeding issummary in nature and a sentence of probation may be revoked ifthe defendant has been afforded an opportunity to be heard andthe court determines by a preponderance of the evidence that acondition of the probation has been violated” (People v Jangrow,34 AD3d 991, 991-992 [2006]; accord People v Simpson, 155 AD3d1246, 1246-1247 [2017]). Defendant’s probation officer testifiedthat he reviewed the conditions of probation with defendant,which included that he refrain from committing other crimes orengaging in illegal activity and observe a curfew from 9:00 p.m.to 6:00 a.m. The probation officer testified that he met withdefendant concerning a report that he was in a car that wasstopped by a City of Albany police officer at approximately 10:00p.m. on March 19, 2015 and that defendant admitted to theprobation officer that he had violated his curfew that night.The probation officer further testified that he visiteddefendant’s residence at 9:07 p.m. on May 6, 2015 and defendantdid not answer the door.Regarding defendant being charged with criminal possessionof a weapon while on probation, two City of Albany policedetectives testified that they were investigating a series ofshootings between certain residents of the City of Albany andresidents of the City of Troy, Rensselaer County, including ashooting that occurred outside a bar in Albany at approximately2:00 a.m. on April 18, 2015. One of the detectives testifiedthat he obtained video footage of the shooting that depicted anindividual walking behind the victim with his arm raised and thena muzzle flash coming from his hand. Both detectives testifiedthat defendant identified himself as the individual in the videothat was walking behind the victim, although he denied firing agun. In light of the foregoing, we find that a preponderance ofthe evidence supports the finding that defendant had violatedcertain conditions of his probation justifying revocation (seePeople v Jordan, 148 AD3d 1461, 1462 [2017]; People v Soprano, 27AD3d 964, 965 [2006]). Although it is undisputed that defendantwas subsequently acquitted after a jury trial on the new chargeof criminal possession of a weapon, “there is no inherentcontradiction between a determination that the defendant violatedhis probation and a verdict acquitting him of the criminaloffenses which formed the basis of the violation, inasmuch as thetwo matters are subject to different standards of proof” (Peoplev Brown, 268 AD2d 592, 593 [2000], lv denied 94 NY2d 945 [2000];see People v Ruff, 50 AD3d 1167, 1168 [2008]).We reject defendant’s contention that the sentencesimposed were harsh and excessive. Defendant was afforded anopportunity to avoid incarceration, but demonstrated an inabilityto comply with the terms of probation in the brief time that hewas on probation. On the record before us, we find no abuse ofdiscretion or extraordinary circumstances warranting a reductionof the sentences in the interest of justice (see People v Cook,133 AD3d 1048, 1048 [2015]; People v McQuality, 95 AD3d 1369,1371 [2012], lv denied 20 NY3d 1013 [2013]).McCarthy, Clark, Rumsey and Pritzker, JJ., concur.ORDERED that the judgment is affirmed.
