Opinion
November 13, 2000.
Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Violation of Probation.
PRESENT: GREEN, J. P., PINE, WISNER, KEHOE AND BALIO, JJ.
Judgment unanimously reversed on the law, declaration of delinquency vacated and sentence of probation reinstated.
Memorandum:
The People did not sustain their burden of proving by a preponderance of the evidence that defendant violated a condition of probation ( see, CPL 410.70). The only material evidence offered was the transcript of prior testimony at the underlying criminal trial.
Although the transcript was admissible at the probation violation hearing ( see, CPL 410.70), it did not qualify as competent evidence under the former testimony exception to the hearsay rule ( see generally, Prince, Richardson on Evidence § 8-513 [Farrell 11th ed]), and thus the People failed to meet their burden of proof ( see, People v. Owens, 258 A.D.2d 901, lv denied 93 N.Y.2d 975; People v. Usher, 80 A.D.2d 730).
Defendant further contends that the 15-month delay between the filing of the declaration of delinquency and the violation hearing denied him the right to a prompt hearing ( see, CPL 410.70). We disagree. Defendant requested a postponement of the violation hearing until such time as the criminal charges were presented to the Grand Jury and his suppression motions were decided. Defendant also indicated that a further adjournment was needed to enable him to obtain the transcripts of the suppression hearing and trial. Under the circumstances, defendant was not denied his right to a prompt hearing.