Opinion
06-16-2017
The PEOPLE of the State of New York, Respondent, v. Anthony WIGGINS, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo P.C. (Eric M. Dolan of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo P.C. (Eric M. Dolan of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: CENTRA, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
On appeal from a judgment revoking his sentence of probation imposed upon his conviction of robbery in the third degree (Penal Law § 160. 05) and criminal contempt in the first degree (§ 215.51[b][v] ) and imposing a sentence of incarceration, defendant contends that Supreme Court erred in finding that he violated the conditions of his probation. We reject that contention.
Preliminarily, the People contend that defendant's appeal is rendered moot by the expiration of the maximum term of his sentence. We reject that contention, and note our disagreement with the Third Department on this issue (see e.g. People v. Lesson, 32 A.D.3d 1083, 1083, 820 N.Y.S.2d 821 ; People v. Hamilton, 214 A.D.2d 783, 783, 624 N.Y.S.2d 982 ). Defendant challenges the determination that he violated the conditions of his probation, and does not challenge the legality or severity of his sentence (cf. People v. Parente, 4 A.D.3d 793, 794, 771 N.Y.S.2d 455 ; People v. Griffin, 239 A.D.2d 936, 936, 659 N.Y.S.2d 613 ; People v. Meli, 142 A.D.2d 938, 939, 531 N.Y.S.2d 70, lv. denied 72 N.Y.2d 921, 532 N.Y.S.2d 856, 529 N.E.2d 186 ). A determination that defendant has violated the conditions of his probation is "a continuing blot on [his] record" with potential future consequences (Matter of Williams v. Cornelius, 76 N.Y.2d 542, 546, 561 N.Y.S.2d 701, 563 N.E.2d 15 ). Indeed, it will impact future sentencing determinations (see People v. Newton, 24 A.D.3d 1287, 1288, 806 N.Y.S.2d 826, lv. denied 6 N.Y.3d 836, 814 N.Y.S.2d 84, 847 N.E.2d 381 ; People v. Tucker, 272 A.D.2d 992, 992, 709 N.Y.S.2d 721, lv. denied 95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375 ), including whether defendant is eligible for a subsequent probationary sentence (see People v. Gassner, 118 A.D.3d 1221, 1221–1222, 988 N.Y.S.2d 293, lv. denied 23 N.Y.3d 1062, 994 N.Y.S.2d 321, 18 N.E.3d 1142 ). We thus conclude that defendant's appeal is not moot (see generally Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ).
Nonetheless, we reject defendant's contention on the merits.
"The People have the burden of establishing by a preponderance of the evidence that defendant violated the terms and conditions of his probation" ( People v. Dettelis, 137 A.D.3d 1722, 1722, 28 N.Y.S.3d 216 ). " ‘Although hearsay evidence is admissible in probation violation proceedings ..., the People must present facts of a probative character, outside of the hearsay statements, to prove the violation’ " ( People v. Paris, 145 A.D.3d 1530, 1531, 45 N.Y.S.3d 726 ). Contrary to defendant's contention, the testimony of his probation officer regarding defendant's admissions is not hearsay, and it is sufficient to establish a violation of probation (see People v. Holland, 95 A.D.3d 1504, 1505, 943 N.Y.S.2d 806, lv. denied 19 N.Y.3d 974, 950 N.Y.S.2d 356, 973 N.E.2d 766 ; People v. Pettway, 286 A.D.2d 865, 865, 730 N.Y.S.2d 597, lv. denied 97 N.Y.2d 686, 738 N.Y.S.2d 302, 764 N.E.2d 406 ; see also People v. Perna, 74 A.D.3d 1807, 1807–1808, 902 N.Y.S.2d 870, lv. denied 17 N.Y.3d 716, 2011 WL 5526457 ). Defendant's probation officer testified that defendant admitted that he was arrested for possession of marihuana and that he had smoked marihuana. The probation officer confirmed that defendant's conduct "violate[d] the [probation] condition that prohibit[ed the] use of any mood altering substance, and it also violate[d] the condition that require[d] law abiding behavior." We thus conclude that the court properly determined that the People demonstrated by a preponderance of the evidence that defendant had possessed and used marihuana in violation of the conditions of his probation (see People v. Wheeler, 99 A.D.3d 1168, 1173, 951 N.Y.S.2d 791, lv. denied 20 N.Y.3d 989, 958 N.Y.S.2d 705, 982 N.E.2d 625 ; Pettway, 286 A.D.2d at 865, 730 N.Y.S.2d 597 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.