Opinion
108403
04-19-2018
The PEOPLE of the State of New York, Respondent, v. Kyle J. FINCH, Appellant.
Michelle E. Stone, Vestal, for appellant. Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), for respondent.
Michelle E. Stone, Vestal, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Clark and Rumsey, JJ.
MEMORANDUM AND ORDER
Devine, J.
Appeal from a judgment of the County Court of Broome County (Northrup Jr., J.), rendered April 7, 2016, which revoked defendant's probation and imposed a sentence of imprisonment.
In June 2015, defendant was convicted of the crimes of failure to register as a sex offender and attempted rape in the third degree and was sentenced to an aggregate term of probation of six years. The probation conditions imposed on each conviction varied and, in September 2015, defendant was charged with violating certain conditions of both terms of probation in that he failed to undergo a substance abuse evaluation and was arrested for new crimes. Following an evidentiary hearing, County Court (Smith, J.) found that defendant had violated the conditions of his probation that were imposed on both convictions. County Court (Northrup Jr., J.) subsequently revoked defendant's probation and resentenced him to an aggregate prison term of 1 to 3 years. 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. Simpson, 155 A.D.3d 1246, 1246–1247, 64 N.Y.S.3d 738 [2017] [internal quotation marks, brackets and citations omitted]; see People v. Jordan, 148 A.D.3d 1461, 1461–1462, 51 N.Y.S.3d 639 [2017] ). "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] [citations omitted]; accord People v. Simpson, 155 A.D.3d at 1247, 65 N.Y.S.3d 580).
Defendant's probation officer, the sole witness at the hearing, testified that he went over the conditions of probation for each conviction with defendant. A condition of probation imposed upon the attempted rape conviction required defendant to "undergo, cooperate, [and] complete ... a substance abuse evaluation/treatment, as arranged and required by the Probation Department." Defendant failed to complete the required substance abuse evaluation, with the probation officer testifying that he repeatedly raised the issue with defendant and that defendant admitted to not attending appointments to undergo one (see People v. Spady, 25 A.D.3d 881, 882, 806 N.Y.S.2d 807 [2006] ; People v. Rushin, 196 A.D.2d 835, 836, 602 N.Y.S.2d 24 [1993], lv denied 82 N.Y.2d 808, 604 N.Y.S.2d 944, 624 N.E.2d 1039 [1993] ).
The terms of probation for both convictions further required defendant to avoid any violations of the law and, in any case, his "commission of an additional criminal offense constitutes a ground for revocation of such probationary sentence irrespective of whether such fact is specified as a condition of the sentence" ( People v. York, 2 A.D.3d 1158, 1159, 770 N.Y.S.2d 169 [2003] [internal quotation marks, brackets and citation omitted]; see CPL 410.10[2] ; People v. Britton, 158 A.D.2d 932, 933, 551 N.Y.S.2d 717 [1990], appeal dismissed 76 N.Y.2d 785, 559 N.Y.S.2d 990, 559 N.E.2d 684 [1990] ). The probation officer testified that, as the result of an incident wherein defendant sent a photograph of his genitals to a 14–year–old girl, defendant was arrested by the State Police for disseminating indecent materialto a minor in the second degree and endangering the welfare of a child. The State Police provided the probation officer with investigative materials that included a videotaped interrogation in which defendant admitted to sending the lewd photograph. The probation officer testified to watching the video and observing defendant make those admissions. The probation officer was free to testify to his observations of the video, but his testimony implicated the hearsay rule insofar as he related defendant's "extrajudicial utterances" ( People v. Clark, 203 A.D.2d 935, 936, 611 N.Y.S.2d 387 [1994], lv denied 83 N.Y.2d 965, 616 N.Y.S.2d 18, 639 N.E.2d 758 [1994] ; see People v. Giarraputo, 37 Misc.3d 486, 487–488, 949 N.Y.S.2d 852 [Crim Ct, Richmond County 2012] ). Nevertheless, those utterances fell within an exception to the hearsay rule as admissions against interest (see People v. Castellanos, 65 A.D.3d 555, 557, 884 N.Y.S.2d 126 [2009], lv denied 13 N.Y.3d 858, 891 N.Y.S.2d 693, 920 N.E.2d 98 [2009] ; People v. Harris, 148 A.D.2d 469, 469, 538 N.Y.S.2d 621 [1989] ; see also People v. Simpson, 155 A.D.3d at 1247, 65 N.Y.S.3d 580). Thus, even assuming that County Court (Smith, J.) erred in finding that the foregoing conduct violated other terms of defendant's probation on the failure to register as a sex offender conviction that were not explicitly referenced in the probation violation report, a preponderance of the evidence supported the finding that he had violated the terms of probation imposed on both convictions (see CPL 410.70[3] ; People v. Simpson, 155 A.D.3d at 1247, 65 N.Y.S.3d 580; People v. Jordan, 148 A.D.3d at 1462, 51 N.Y.S.3d 639 ; People v. Bower, 9 A.D.3d 603, 604, 779 N.Y.S.2d 675 [2004], lv denied 3 N.Y.3d 704, 785 N.Y.S.2d 31, 818 N.E.2d 673 [2004] ).
ORDERED that the judgment is affirmed.
McCarthy, J.P., Egan Jr., Clark and Rumsey, JJ., concur.