Calendar Date: October 19, 2017
Stephen W. Herrick, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.
David Soares, District Attorney, Albany (Michael C. Wetmore
of counsel), for respondent.
Before: Egan Jr., J.P., Devine, Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Albany County
(Ceresia, J.), rendered March 27, 2015, which revoked
defendant's probation and imposed a sentence of
September 2013, defendant was sentenced to five years of
probation upon his conviction of attempted criminal
possession of a weapon in the third degree stemming from a
domestic altercation with the mother of his children. Upon
sentencing, an order of protection was also issued against
defendant in favor of the mother. In October 2014, while on
probation, defendant had a verbal and physical altercation
with the mother and was subsequently arrested and charged
with harassment, petit larceny and felony criminal contempt.
Thereafter, defendant was charged
violating the conditions of his probation that prohibited him
from committing any additional crimes and required him to
abide by all active orders of protection. Following an
evidentiary hearing, County Court found that defendant
violated these conditions, revoked his probation and
resentenced defendant to 1 to 3 years in prison. Defendant
affirm. "[A] violation of probation proceeding is
summary in nature and a sentence of probation may be revoked
if the defendant has been afforded an opportunity to be heard
and the court determines by a preponderance of the evidence
that a condition of the probation has been violated"
(People v Jordan, 148 A.D.3d 1461, 1461 
[internal quotation marks and citations omitted];
see CPL 410.70 ; People v Beauvais, 101
A.D.3d 1488, 1489 ; People v Rockefeller, 79
A.D.3d 1527, 1527 , lv denied 16 N.Y.3d 862');">16 N.Y.3d 862
). "Hearsay evidence is admissible and may be
considered, but it cannot alone support a finding of a
probation violation" (People v Coupe, 124
A.D.3d 1141, 1142 ; see People v Wiggins, 151
A.D.3d 1859, 1860 , lv denied ___ N.Y.3d ___
[Sept. 11, 2017]; People v Bevilacqua, 91 A.D.3d
1120, 1120 ).
hearing, defendant's probation officer testified that she
reviewed with defendant the terms and conditions of his
probation and that, by signing an order and conditions of
probation, defendant acknowledged his receipt and
understanding of the terms and conditions of his probation.
While much of the remaining evidence, including testimony
from the 911 dispatcher who received the 911 call from the
mother after the incident, testimony from the maternal
grandfather as to the mother's statements shortly after
the encounter and the mother's recorded 911 call, was
hearsay, said evidence was properly considered by County
Court under the excited utterance exception to the hearsay
rule (see People v Haskins, 121 A.D.3d 1181,
1183-1184 , lv denied 24 N.Y.3d 1120');">24 N.Y.3d 1120 ;
People v Auleta, 82 A.D.3d 1417, 1418-1419 ,
lv denied 17 N.Y.3d 813');">17 N.Y.3d 813 ; People v
Nelson, 266 A.D.2d 725, 726 , lv denied
95 N.Y.2d 801');">95 N.Y.2d 801 ). To the extent that the responding
officer's testimony regarding the mother's statements
two hours after the incident constitutes hearsay and does not
fall under the excited utterance exception, we note that such
evidence did not provide the sole basis for County
Court's violation finding (see People v Coupe,
124 A.D.3d at 1142; compare People v DeMoney, 55
A.D.3d 953, 954 ). According appropriate deference to
County Court's credibility determinations, we find that
the record evidence amply supports the finding that defendant
violated the terms of his probation (see People v
Filipowicz, 111 A.D.3d 1022, 1022-1023 , lv
denied 22 N.Y.3d 1156');">22 N.Y.3d 1156 ; compare People v
DeMoney, 55 A.D.3d at 954).
no merit to defendant's further claim that the term of
imprisonment imposed upon resentencing is harsh and
excessive. Given defendant's criminal history, lack of
remorse and the fact that his violation of probation involved
the same victim as his underlying conviction, we find no
extraordinary circumstances or any abuse of discretion
warranting a reduction of the resentence in the interest of
justice (see People v Washington, 138 A.D.3d 1246,
1247-1248 ; People v Rockefeller, 79 A.D.3d at
1528). Defendant's remaining contentions have been
considered and found to be without merit.
Jr., J.P., Devine, Mulvey and ...