Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Anthony J. PARIS, III, Defendant–Appellant.
Anthony J. Cervi, Buffalo, for Defendant–Appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Julie B. Fiske of Counsel), for Respondent.
Anthony J. Cervi, Buffalo, for Defendant–Appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Julie B. Fiske of Counsel), for Respondent.
PRESENT: SMITH, J.P., DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:On appeal from a judgment revoking his sentence of probation imposed upon his conviction of strangulation in the second degree (Penal Law § 121.12 ) and imposing a sentence of incarceration, defendant contends that the People failed to meet their burden of establishing that he violated a condition of his probation. We agree.
"The People have the burden of establishing by a preponderance of the evidence that defendant violated the terms and conditions of his probation" (People v. Dettelis, 137 A.D.3d 1722, 1722, 28 N.Y.S.3d 216 ; see CPL 410.70 [3 ] ). "Although hearsay evidence is admissible in probation violation proceedings ..., the People must present facts of a probative character, outside of the hearsay statements, to prove the violation" (People v. Pettway, 286 A.D.2d 865, 865, 730 N.Y.S.2d 597, lv. dismissed 97 N.Y.2d 686, 738 N.Y.S.2d 302, 764 N.E.2d 406 ; see People v. Owens, 258 A.D.2d 901, 901, 685 N.Y.S.2d 556, lv. denied 93 N.Y.2d 975, 695 N.Y.S.2d 61, 716 N.E.2d 1106 ). Contrary to the People's contention, the only evidence adduced at the hearing that defendant had violated the condition that he successfully complete treatment at an out-of-town residential substance abuse program was the hearsay statement of a counselor to defendant's probation officer that defendant was not compliant with his treatment and had been unsuccessfully discharged from the program (see People v. DeMoney, 55 A.D.3d 953, 954, 865 N.Y.S.2d 153 ; Owens, 258 A.D.2d at 901, 685 N.Y.S.2d 556 ; cf. People v. Michael J.F., 15 A.D.3d 952, 953, 788 N.Y.S.2d 910 ). We thus conclude that Supreme Court's finding that defendant violated the subject condition of his probation is not supported by a preponderance of the evidence (see CPL 410.70[3] ).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the declaration of delinquency is vacated, and the sentence of probation is reinstated.