Summary
holding probationer was entitled access to prior statements of hearing witnesses regarding the subject of their testimony in order to afford him "a meaningful opportunity to conduct cross-examination" at his probation revocation hearing
Summary of this case from State v. HillOpinion
February 7, 1994
Appeal from the Supreme Court, Queens County (Joy, J.).
Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report whether the Department of Probation has in its possession any prior statements of the hearing witnesses regarding the events to which they testified at the hearing on the defendant's violation of probation, and the appeal is held in abeyance in the interim. The Supreme Court shall issue its report with all deliberate speed.
We find unpersuasive the contention of the Department of Probation that the defendant waived his right to pursue the instant appeal in a subsequent plea agreement on an unrelated indictment. Neither the oral waiver entered on the record in connection with that plea nor the written waiver form executed by the defendant indicated that the waiver of the right to appeal extended to the previous probation violation (cf., People v Graham, 177 A.D.2d 505).
Similarly unavailing is the claim of the Department of Probation that the present appeal should be dismissed because the defendant has already challenged the probation violation as part of his excessive sentence appeal from another conviction. The record and the order of this Court determining that excessive sentence appeal refute this assertion (see, People v Quattlebaum, 196 A.D.2d 950).
We reject the defendant's contention that the court's determination regarding his violation of probation is not supported by legally sufficient proof and is against the weight of the evidence. The testimony of the victim and an eyewitness and the introduction of the victim's hospital records amply demonstrated by a preponderance of the evidence that the defendant violated a condition of his probation (see generally, CPL 410.70; People v. Schneider, 188 A.D.2d 754; People v Davis, 155 A.D.2d 610; People v. Gardner, 116 A.D.2d 735; People v Howland, 108 A.D.2d 1019). To the extent that the defendant challenges the veracity of the hearing witnesses by pointing to inconsistencies in their testimony, we note that these discrepancies raised an issue of credibility for the court to resolve (see, People v. Neuroth, 172 A.D.2d 886; People v Krzykowski, 121 A.D.2d 831), and we discern no basis on this record for disturbing its determination (see generally, People v Forman, 105 A.D.2d 984).
We further agree with the Department of Probation that, due to the summary and informal nature of probation revocation proceedings (see generally, CPL 410.70; Matter of Darvin M. v. Jacobs, 69 N.Y.2d 957; People v. Tyrrell, 101 A.D.2d 946), the discovery provisions of CPL article 240 are inapplicable to those proceedings (see, e.g., People v. Morton, 142 A.D.2d 763). However, to the extent that the defendant sought access to the prior statements, if any, of the hearing witnesses concerning the subject of their testimony, we have held under similar circumstances that such material should be turned over in order to afford a defendant a meaningful opportunity to conduct cross-examination at a probation revocation hearing (see, People v. Adams, 47 A.D.2d 928). Since the record does not indicate whether any such prior statements are in the possession of the Department of Probation, we remit the matter to the Supreme Court to hear and report on this question, and hold the appeal in abeyance in the interim. The defendant's remaining discovery requests are either unpreserved for appellate review or improper. Bracken, J.P., Sullivan, Krausman and Goldstein, JJ., concur.