Opinion
11-16-2017
The PEOPLE of the State of New York, Respondent, v. Brandon SIMPSON, Appellant.
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: EGAN JR., J.P., DEVINE, CLARK, MULVEY and RUMSEY, JJ.
CLARK, J.In 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 with 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 now appeals.
We 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, 51 N.Y.S.3d 639 [2017] [internal quotation marks and citations omitted]; see CPL 410.70 [3 ]; People v. Beauvais, 101 A.D.3d 1488, 1489, 955 N.Y.S.2d 898 [2012] ; People v. Rockefeller, 79 A.D.3d 1527, 1527, 913 N.Y.S.2d 417 [2010], lv. denied 16 N.Y.3d 862, 923 N.Y.S.2d 424, 947 N.E.2d 1203 [2011] ). "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, 2 N.Y.S.3d 298 [2015] ; see People v. Wiggins, 151 A.D.3d 1859, 1860, 58 N.Y.S.3d 781 [2017], lv. denied 30 N.Y.3d 954, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2017] ; People v. Bevilacqua, 91 A.D.3d 1120, 1120, 936 N.Y.S.2d 397 [2012] ).
At the 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, 994 N.Y.S.2d 696 [2014], lv. denied 24 N.Y.3d 1120, 3 N.Y.S.3d 761, 27 N.E.3d 475 [2015] ; People v. Auleta, 82 A.D.3d 1417, 1418–1419, 919 N.Y.S.2d 222 [2011], lv. denied 17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92 [2011] ; People v. Nelson, 266 A.D.2d 725, 726, 698 N.Y.S.2d 755 [1999], lv. denied 95 N.Y.2d 801, 711 N.Y.S.2d 169, 733 N.E.2d 241 [2000] ). 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, 2 N.Y.S.3d 298 ; compare People v. DeMoney, 55 A.D.3d 953, 954, 865 N.Y.S.2d 153 [2008] ). 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, 974 N.Y.S.2d 653 [2013], lv. denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ; compare People v. DeMoney, 55 A.D.3d at 954, 865 N.Y.S.2d 153 ).
We find 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, 28 N.Y.S.3d 349 [2016] ; People v. Rockefeller, 79 A.D.3d at 1528, 913 N.Y.S.2d 417 ). Defendant's remaining contentions have been considered and found to be without merit.
ORDERED that the judgment is affirmed.
EGAN JR., J.P., DEVINE, MULVEY and RUMSEY, JJ., concur.