SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1389
KA 14-01524
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
HEATH M. CUMMINGS, DEFENDANT-APPELLANT.
WILLIAM J. GABLER, OLEAN, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.
Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.) rendered June 12, 2013. The judgment revoked defendant’s
sentence of probation and imposed a sentence of imprisonment.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment revoking the
sentence of probation imposed upon his conviction of sexual abuse in
the first degree (Penal Law § 130.65 [3]) and sentencing him to a term
of incarceration. Contrary to defendant’s contention, the violation
of probation was not de minimis nor a mere technicality. Defendant
was sentenced to probation for an offense involving sexual contact
with a young boy, and one of the conditions of probation was that
defendant was prohibited from having any contact or association with
children under the age of 18. The evidence at the revocation hearing
established that defendant was developing a relationship with a man
who is the father of two boys, that defendant rode in a vehicle with
those boys, that he gave a false name to the boys’ parents, and that
he began to ingratiate himself with the boys by letting them play with
his dogs.
Furthermore, given the nature of his prior offense and the
violation, we conclude that the term of incarceration, which is
approximately one half of the maximum sentence, is not unduly harsh or
severe. We have considered defendant’s remaining contention and
conclude that it is without merit.
Entered: December 31, 2015 Frances E. Cafarell
Clerk of the Court