Opinion
No. 12–P–875.
2013-11-6
COMMONWEALTH v. Jose SORIANO.
By the Court (MEADE, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jose Soriano, appeals from the revocation of his probation by the Boston Juvenile Court. We will address each of the defendant's contentions in turn.
First, the evidence was sufficient to support the judge's findings of both probation violations. Officer Whitehead's testimony about what was reported to him by another probation officer, Officer Brown, was hearsay. However, it contained sufficient indicia of reliability to allow it alone to support the finding that the defendant failed to meet with Officer Brown on June 24, 2011. Commonwealth v. Durling, 407 Mass. 108, 118 (1990) (“Unsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation. When hearsay evidence is reliable, however, then it can be the basis of a revocation”) (emphasis original). There was also sufficient evidence that the defendant violated a condition of his probation requiring that he not be present in Boston without a parent. The testimony of Officer Keeler, who knew the defendant, was sufficient to support the judge's finding that when the defendant was arrested in Boston his parent was not with him. Though corroboration of this testimony was not necessary, the absence of any mention in the police report of a parent's presence does provide at least some corroboration of Officer Keeler's testimony. There were apparently two “Exhibit 1s” admitted at the hearing. Even if this was error, however, the defendant has not demonstrated that the admission of what he describes as the second portion of Exhibit 1 was prejudicial.
No contention is raised about the propriety of such a condition of probation.
The defendant claims that the judge found two violations based on one probationary condition, because the judge seems to have stated that the defendant's presence in Boston without a parent was a violation of both the defendant's explicit conditions of probation and the Department of Youth Services (DYS) service plan he was required to comply with as a condition of probation. The judge appears to have misspoken. Her written findings, though, make clear that only two violations were found: a violation of the stay-out-of-Boston-without-a-parent condition, and a violation of the requirement that the defendant meet with his probation officer. (The DYS service plan is, in fact, what imposed the latter requirement.) The judge thus did not find two violations premised on a single probationary condition.
In fact, the judge did not even check the box indicating a finding of violation for failure to report to the probation officer, though that appears to have been an oversight. Any error is irrelevant to the issues before us.
After the close of evidence, the judge heard argument from the Commonwealth seriatim on both the finding of the violation and on its proposed disposition, before hearing argument from the defense seriatim on those two matters. Even assuming that this violates Juvenile Court Standing Order 1–07, § VI(b) (2007), which requires a two-stage proceeding to determine whether a violation or violations occurred and, if so, what the disposition of the matter should be, we conclude that under Commonwealth v. Dubowski, 58 Mass.App.Ct. 292, 296–297 (2003), it was in this case not reversible error.
Finally, even if it was error for the judge to have the board of probation report before her, the defendant did not object below, and he has not shown that it created a substantial risk of a miscarriage of justice, or, indeed, that it was even prejudicial.
Order revoking probation and imposing sentence affirmed.