The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
The defendant, Scott J. Bald, was charged in a Petition for Offender Under Supervision, filed on January 3, 2013, with four charges of violating a mandatory condition of his supervised release requiring that he "not commit another federal, state or local crime." The Petition specifically charged that, on December 31, 2012 defendant Bald was arrested by Buffalo police and charged with the following: (1) criminal mischief (3rd), a class E felony, in violation of Section 145.05 of the New York State Penal Law; (2) petit larceny, a class A misdemeanor, in violation of Section 155.25 of the New York State Penal Law; (3) obstruction of governmental administration, a class A misdemeanor, in violation of Section 195.05 of the New York State Penal Law; and (4) possession of burglar tools, a class A misdemeanor, in violation of Section 140.35 of the New York State Penal Law.
The charges in the Petition arise from a response to a 911 call complaining that unknown persons were illegally entering a parked car in the early morning hours of December 31, 2012, during which time Buffalo police officers found defendant Bald and an accomplice fleeing from the area. A witness identified defendant Bald as one of the individuals responsible for the break-in. At the time of the arrests, defendant's accomplice was in possession of two screwdrivers. Based upon the facts established during a violation hearing, and for the reasons stated herein, the Court finds the defendant guilty of Charge 1, Charge 2, Charge 3, and Charge 4 set forth in the Petition.
A judgment in a criminal case against defendant Bald was filed on August 21, 2012. Defendant had been adjudicated guilty after a plea to Conspiracy to Possess with Intent to Distribute and to Distribute Oxycodone in violation of Sections 841(a)(1), 841(b)(1)(C), and 846 of Title 21 of the United States Code. Defendant was sentenced to 15 months imprisonment. Defendant's criminal history at the time of sentencing was Category IV.
As a part of the sentence, this Court also imposed a three (3) year term of federal supervised release. The sentence included, as a Condition of Supervision, the following mandatory charge:
The defendant shall not commit another federal, state or local crime. Defendant served the term of imprisonment imposed by this Court and his period of supervision commenced on November 16, 2012. After an initial appearance on the Petition on February 20, 2013, a violation hearing was held pursuant to Federal Rule of Criminal Procedure 32.1(b)(2) on March 7, 2013. During the hearing, the Government introduced the testimony of Buffalo Police Officers Jonathan Pietrzak and Nicholas Conrad as well as civilian witnesses James Earnest Weber and Erica Arroyo. Defendant did not call any witnesses. Following the hearing, both the Government and defendant submitted post-hearing findings of fact and conclusions of law. (Dkt. Nos. 32 and 33) The Court heard closing arguments on April 24, 2013.
The Court evaluates the evidence offered to establish a violation of supervised release by a standard of the preponderance of the evidence. 18 U.S.C. § 3583(e)(3); Johnson v. United States, 529 U.S. 694, 700 (2000). While conducting the hearing and reviewing the evidence presented at the hearing, the Court is mindful that the Federal Rules of Evidence are not applicable in revocation proceedings. Fed. R. Evid. 1101(d)(3). Certainly, however, the Federal Rules of Evidence are a useful guide to help the Court to make findings supported by "verified facts" and by "accurate knowledge." United States v. Bari, 599 F.3d 176, 179 (2d Cir. 2010) (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).
After carefully observing the witnesses' demeanor and testimony, considering all of the exhibits admitted into evidence, reviewing the parties' post- hearing submissions, and applying the preponderance of the evidence standard of proof, the Court finds the following facts.
James Earnest Weber resides at 149 Metcalfe Street, Buffalo, New York. (Dkt. No. 31, p. 64) In the early morning hours of December 31, 2012, Weber observed motion in his neighbor's driveway that appeared suspicious. Id. Weber called 911 to report the suspicious activity. Id. Weber testified that he informed the 911 operator that he observed a tall white male wearing a black hooded-sweatshirt "going by [his] fence and into [his] neighbor's car." Id. (Dkt. No. 31, p. 64; Government Exhibit 3)
After calling 911 and reporting the suspicious activity, Weber retrieved a flashlight and walked out onto his driveway to investigate as to whether any of his property had been stolen. (Dkt. No. 31, p. 64-65) Weber testified that he observed two individuals in black hooded-sweatshirts walking down Metcalfe Street. Id. at 65. Weber then got in his car and attempted to follow the individuals. However, he turned around when he saw a police car approaching so that he could speak with the officers. Id. at 65. Upon returning to his home, Weber spoke with the first officer to arrive at the scene. (Dkt. No. 31, p. 69) Weber then accompanied this officer, in his patrol car, to attempt to find the suspects. (Dkt. No. 31, p. 70) They drove from Metcalfe Street to Thomas Street but were unable to locate the suspects. (Dkt. No. 31, p. 70) When the officer and Weber returned to Metcalfe Street, other Buffalo police officers had arrived at the scene. Id. at 71.
Officer Jonathan Pietrzak of the City of Buffalo Police Department was working an 8 p.m. to 6 a.m. patrol shift in the C District on December 31, 2012. (Dkt. No. 31, p. 6) At approximately 4:00 a.m., Officer Pietrzak was notified by radio and asked to respond to a 911 dispatch call regarding a suspicious person in the area of 150 Metcalfe. Id. at 7. Officer Pietrzak was told by the 911 dispatcher that a tall, white male wearing dark clothing was observed possibly breaking into a vehicle. Id.
Officer Pietrzak and his partner, Officer Nicholas Conrad, proceeded to 150 Metcalfe Street. (Dkt. No. 31, p. 10) There, they encountered Weber who was speaking with another officer. Id. Weber stated that he saw two people breaking into a car and that he had followed them to Thomas Street, before the first responding officer had arrived. Id. at 39. Officer Pietrzak asked Weber if he was willing to ...