Opinion
No. 2023-191 RO CR
03-14-2024
The People of the State of New York, Respondent, v. Byron Mendoza, Appellant.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Rockland County District Attorney (Meghan Garvey of counsel), for respondent.
Unpublished Opinion
Feldman and Feldman (Steven A. Feldman of counsel), for appellant.
Rockland County District Attorney (Meghan Garvey of counsel), for respondent.
PRESENT:: TIMOTHY S. DRISCOLL, J.P., JAMES P. McCORMACK, GRETCHEN WALSH, JJ
Appeal from an amended judgment of the Justice Court of the Village of Spring Valley, Rockland County (David Fried, J.), rendered January 24, 2023. The amended judgment revoked a sentence of probation previously imposed by that court, upon a finding, following a hearing, that defendant had violated a condition thereof, and resentenced defendant to 364 days' imprisonment upon his prior conviction of assault in the third degree.
ORDERED that the amended judgment of conviction is affirmed.
Defendant appeals from an amended judgment rendered January 24, 2023 which, following a hearing, resentenced him to a term of 364 days' incarceration upon his prior conviction of assault in the third degree (Penal Law § 120.00 [1]), based upon a determination that he had violated conditions of his probation by not complying with substance abuse treatment, using alcohol, and getting arrested twice.
Defendant's contention that the court improperly relied on "hearsay court exhibits" in making its finding that defendant had violated conditions of his probation by getting arrested twice is unpreserved for appellate review (see CPL 470.05 [2]). In any event, the contention is without merit. "A hearing on a probation violation is a summary, informal procedure which does not require strict adherence to the rules of evidence" (People v Tyrrell, 101 A.D.2d 946, 946 [1984]; see People v Herring, 178 A.D.3d 1073, 1074 [2019]). "Hearsay evidence is admissible in a probation violation hearing and may be considered along with other evidence, but the court cannot conclude that a defendant violated probation without 'a residuum of competent legal evidence'" (People v DeMoney, 55 A.D.3d 953, 954 [2008], quoting People v Machia, 96 A.D.2d 1113, 1114 [1983]). Here, the Justice Court "properly took judicial notice of its own file" (People v Williams, 164 A.D.3d 845, 845 [2018]) and "its own prior proceedings" (People v Beauvais, 101 A.D.3d 1488, 1489 [2012]), including the original presentence investigation report, criminal history report, the terms and conditions of probation, subsequent accusatory instruments, the Violation of Probation petition, and an addendum to the Violation of Probation petition (see Herring, 178 A.D.3d at 1074; Williams, 164 A.D.3d at 845; Beauvais, 101 A.D.3d at 1489).
Defendant also failed to preserve for appellate review his contention that the court abused its discretion in resentencing defendant without ordering an updated presentence investigation report (see CPL 470.05 [2]). In any event, that contention is without merit. Only six months had elapsed between the presentence investigation report and imposition of the original sentence in July 2022 and the resentencing in January 2023 (see People v James, 232 A.D.2d 504 [1996]; People v Roberts, 214 A.D.2d 592, 593 [1995]). The court also conducted a full revocation hearing, at which a probation officer and defendant himself testified (see People v Gianni, 94 A.D.3d 1477, 1478 [2012]; People v Allen W., 129 A.D.2d 867, 868 [1987]). Further, as the same judge presided over both the original proceedings and the revocation proceedings, "[t]he court was 'fully familiar with any changes in defendant's status, conduct or condition' since the original sentencing" (People v Howard, 254 A.D.2d 701, 701 [1998], quoting People v Reaves, 216 A.D.2d 945, 945 [1995]; see People v Carey, 86 A.D.3d 925, 925 [2011]).
Defendant's contention that the sentence imposed was excessive is academic, as defendant has completed his sentence (see People v McLaine, 64 N.Y.2d 934 [1985]).
Accordingly, the amended judgment of conviction is affirmed.
DRISCOLL, J.P., McCORMACK and WALSH, JJ., concur.