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UNITED STATES EX REL. SPERO v. WENZEL

July 3, 1975

UNITED STATES of America ex rel. William Aaron SPERO, Petitioner,
v.
Henry G. WENZEL III, District Attorney of the County of Suffolk, Respondent



The opinion of the court was delivered by: BRAMWELL

MEMORANDUM AND ORDER

 BRAMWELL, District Judge.

 William A. Spero, petitioner in this habeas corpus action, pleaded guilty in state court to Forgery in the second degree and attempted grand larceny in the third degree. As a result, he was placed on probation for a period of five years, beginning in December 1972. Thereafter, on April 2, 1974 petitioner was charged with violating the terms and conditions of his probation. A hearing on these charges was held on April 29-30, 1974, where it was determined that Spero had violated the terms of his probation. As a result, the court revoked petitioner's probation and sentenced him to a term of one year for each previous conviction to be served consecutively. Spero then appealed to the Appellate Division, Second Department, contending that the evidentiary standards employed at the probation revocation hearing resulted in a deprivation of his constitutional rights. On November 25, 1974 that court affirmed without opinion the determination which resulted from the revocation hearing. People v. Spero, 46 A.D.2d 805 (2d Dept. 1974). On February 20, 1975 the New York Court of Appeals denied Spero leave to appeal. Having exhausted his state remedies, Spero has now petitioned this court on a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that he is being unlawfully detained at the Suffolk County Jail in violation of the Fourteenth Amendment guarantee of due process of law and the Sixth Amendment right of a criminal defendant to be confronted with the witnesses against him.

 The probation revocation hearing complained of by petitioner was held pursuant to and in basic accordance with the New York statutory scheme. *fn1" An examination of the record of Spero's hearing discloses that he was represented by counsel, exercised the right to cross-examine the one witness relied on by the prosecution, testified in his own behalf, and that no legally privileged evidence was used against him. Upon a preponderance of the evidence, the Judge found Spero to be in violation of the terms of his probation. However, petitioner asks that we do not end our inquiry here. It is his contention that the use of hearsay evidence at a probation revocation hearing is constitutionally impermissible in that the determination reached could result in the defendant's incarceration. After reviewing the entire record of the probation hearing this Court has found a sufficient amount of relevant, competent, non-hearsay evidence to warrant a finding that petitioner violated a condition of probation.

 Accordingly, petitioner's motion is denied. Nonetheless, this Court's concern with the dangers inherent in the use of unlimited hearsay at such a vital stage of the criminal proceeding compels a further consideration of this practice.

 The charge against the petitioner alleged that he:

 1. Left the jurisdiction without the permission of his probation officer;

 2. Failed to report to his probation officer as ordered;

 3. Engaged in injurious and vicious habits, including:

 a. Failure to return, by the date specified in the contract, an automobile rented in Delaware;

 b. Failure to return a hauling truck rented in Delaware by the date specified in the rental contract;

 c. Issuance of a bad check in the amount of $74.99 in violation of N.Y. Penal Law § 190.05 (McKinney's Consol. (Laws, c. 40, 1967);

 d. Issuance of a bad check in the amount of $48.57 in violation of 11 Del. ...


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