Opinion
February 2, 1990
Appeal from the Onondaga County Court, Cunningham, J.
Present — Dillon, P.J., Denman, Green, Lawton and Davis, JJ.
Judgment unanimously vacated on the law and matter remitted to Onondaga County Court for resentencing in accordance with the following memorandum: On February 28, 1989, defendant was sentenced in Onondaga County Court to a period of five years' probation on his plea of guilty to criminally negligent homicide. Defendant was not given a written copy of the terms and conditions of his probation as required by CPL 410.10 (1). On March 9, 1989 he was arrested for assault in the third degree and unlawful imprisonment in the second degree. County Court issued a declaration of delinquency for defendant's failure to abide by the conditions that he refrain from violating the law; that he abstain from use of alcoholic beverages; and that he stay out of establishments serving alcoholic beverages. At a subsequent hearing pursuant to CPL 410.70, the Judge who had sentenced defendant conceded that the conditions to abstain from alcohol and to stay out of places serving alcohol had not been given to defendant in writing; nevertheless, at the close of the proof, he found that the charges of assault in the third degree and unlawful imprisonment in the second degree had been proven by a preponderance of the evidence (CPL 410.70). Defendant was discharged from probation and sentenced to an indeterminate term of imprisonment of 1 1/3 to 4 years. Subsequently, he was found not guilty of the charges underlying the probation revocation.
Defendant contends that his probation was improperly revoked because the court did not give him a written copy of the conditions of probation at the time he was sentenced and because he was acquitted of the charges underlying the revocation. It was error for the court to fail to give defendant a written copy of the conditions of his probation so as to inform him explicitly of the conduct to be avoided (see, People v Howland, 108 A.D.2d 1019). Defendant's probation was properly revoked, nevertheless, based on his "[c]ommission of an additional offense" (CPL 410.10) without the need for defendant to have been notified of that condition. The fact that defendant was later acquitted of the underlying charges is irrelevant. The rules of evidence and the burden of proof in a probation revocation hearing are different from those in a criminal trial (see, CPL 410.70; see also, People v Howland, supra; People v Morse, 96 A.D.2d 654).
Because County Court erred in finding that defendant violated the oral conditions of his probation, we vacate the sentence and remand defendant to County Court, Onondaga County, for resentencing on the violation of CPL 410.10 (2) only.