People v. Pestone

—Appeal by the defendant from an amended judgment of the Supreme Court, [547] Westchester County (Cowhey, J.), rendered November 14, 1997, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof by failing to make agreed-upon restitution payments, after a hearing, and imposing a sentence of imprisonment upon his previous conviction of grand larceny in the third degree. Ordered that the amended judgment is affirmed. Under the circumstances of this case, the court providently exercised its discretion in revoking the defendant’s sentence of probation, which was conditioned in large measure upon the payment of restitution, and sentencing the defendant to a period of incarceration (see, People v Martinich, 258 AD2d 742; People v Carrington, 178 AD2d 648; People v Sichenzia, 155 AD2d 702; People v Felman, 141 AD2d 889; People v Wojcieszek, 140 AD2d 972). Contrary to the defendant’s contentions, his probation was revoked because of his failure to abide by the terms thereof, including the payment of restitution. To the extent that the defendant was unable to pay restitution due to his subsequent Federal conviction and incarceration, this was a self-created hardship (see, Matter of Knights v Knights, 71 NY2d 865). The defendant’s remaining contentions are without merit. Sullivan, J. P., S. Miller, Friedmann and Schmidt, JJ., concur.