Opinion
February 10, 1999
Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Violation of Probation.
Present — Denman, P. J., Pine, Pigott, Jr., Callahan and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Following a probation revocation hearing, Supreme Court concluded that defendant had violated two conditions of probation and sentenced him to an indeterminate term of incarceration of 1 to 3: years, based on a prior judgment convicting him of assault in the second degree. We agree with defendant that the evidence is insufficient to support the charge that he changed his address without notifying the Probation Department. The only proof adduced in support of that charge was the hearsay statement, admitted without objection, that defendant's godmother told defendant's probation officer that "it was her belief that [defendant] did not reside there any more". While hearsay is admissible at a probation revocation hearing, hearsay alone does not satisfy the requirement that a finding of a probation violation must be based upon a preponderance of the evidence ( see, People v. Krzykowski, 121 A.D.2d 831, 832; People v. Machia, 96 A.D.2d 1113, 1114).
The evidence is sufficient, however, to support the charge that defendant failed to report to the Probation Department. The probation officer testified that defendant missed-numerous dates. Defendant contends that he did not have clear and explicit notice of the reporting condition. The probation officer testified, however, that the "Orders and Conditions" statement signed by defendant required him to report twice a week as directed. That condition is sufficiently specific. Finally, the sentence is neither unduly harsh nor severe.