Submitted - October 7, 2019
S. Coe, New City, NY, for appellant.
M. Hoovler, District Attorney, Middletown, NY (William C.
Ghee of counsel), for respondent.
C. DILLON, J.P. JEFFREY A. COHEN ROBERT J. MILLER ANGELA G.
DECISION & ORDER
by the defendant from an amended judgment of the County
Court, Orange County (Craig Stephen Brown, J.), rendered
September 17, 2018, revoking a sentence of probation
previously imposed by the same court upon a finding that he
violated conditions thereof, after a hearing, and imposing a
term of imprisonment of 6½ years followed by 2 years
of postrelease supervision upon his previous conviction of
criminal sale of a controlled substance in the third degree.
that the amended judgment is modified, as a matter of
discretion in the interest of justice, by reducing the
sentence imposed to a term of imprisonment of 2½ years
followed by 2 years of postrelease supervision; as so
modified, the amended judgment is affirmed.
defendant pleaded guilty to criminal sale of a controlled
substance in the third degree. As a condition of his plea, he
waived his right to appeal. On December 13, 2016, the County
Court sentenced the defendant to a term of imprisonment of
six months plus a period of probation of five years. On or
about March 21, 2018, a petition alleging a violation of
probation was filed, wherein it was alleged that the
defendant violated certain conditions of his probation. At
the conclusion of a revocation of probation hearing, the
court found that the defendant had violated conditions of his
probation by being subsequently arrested and then indicted
for attempted murder, and by using marijuana. The court
revoked the defendant's prior sentence and imposed a
sentence of a term of imprisonment of 6½ years
followed by 2 years of postrelease supervision.
provides for a fact-finding hearing upon a declaration of
probation delinquency at which the defendant is entitled to
counsel and may cross-examine witnesses and present evidence
(see CPL 410.70, , ; People v.
Donohue, 283 A.D.2d 586; People v. Adams, 47
A.D.2d 928). However, "'[a] hearing on a probation
violation is a summary, informal procedure which does not
require strict adherence to the rules of evidence'"
(People v. Washington, 55 A.D.3d 933, 933, quoting
People v. Minard, 161 A.D.2d 607). "A finding
of a violation of probation must be based upon a
preponderance of the evidence" (People v.
Stahl, 113 A.D.3d 640, 641; see CPL 410.70;
People v. Maldonado, 44 A.D.3d 793), which requires
that there be "a residuum of competent legal evidence in
the record" (People v. Franco, 267 A.D.2d 399,
399; see People v. Park, 203 A.D.2d 596). However,
the People's case cannot rest entirely on hearsay
(see People v. Kovarik, 112 A.D.2d 170).
the defendant correctly contends that the County Court erred
in finding that he violated the condition of his probation
prohibiting him from committing any additional crime,
offense, or violation based solely on his arrest and
indictment for attempted murder. While the court would have
been permitted to take judicial notice of the defendant's
subsequent indictment for attempted murder (see People v.
Williams, 164 A.D.3d 845), that evidence was presented
after the close of evidence at the revocation of probation
hearing. The defendant had no opportunity to be heard
regarding the indictment and related documents relied upon by
the court. Accordingly, the court should not have found that
the defendant violated the condition of his probation based
upon the commission of a new crime (see People v.
Songa, 132 A.D.3d 1071, 1072-1073; People v.
Padworski, 63 A.D.3d 558; People v. Almonte, 50
A.D.3d 696, 697).
defendant does not challenge the County Court's finding
that he violated the condition of his probation prohibiting
the use of, inter alia, marijuana. Upon a finding that the
defendant has violated a condition of probation, the court is
authorized to revoke probation and sentence the defendant for
the original crime (see CPL 410.70; People v.
Barnes, 159 A.D.3d 1001). Confining our consideration to
only the ...