People v Welch

2008 NY Slip Op 07803 [55 AD3d 952]

October 16, 2008

Appellate Division, Third Department

As corrected through Wednesday, December 10, 2008

The People of the State of New York, Respondent, v David E. Welch,Appellant.

—[*1]Ronald L. Newell, Glens Falls, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Kevin P. Donlon of counsel), forrespondent.

Kavanagh, J. Appeal from a judgment of the County Court of Warren County (Hall, Jr., J.),rendered August 1, 2007, which revoked defendant's probation and imposed a sentence ofimprisonment.

On May 22, 2002, defendant pleaded guilty to driving while intoxicated, a class E felony, and wassentenced to five years of probation. The terms of his probation were amended by consent to requiredefendant to sign a drug treatment contract which outlined his obligations, including the requirement thathe "participate diligently" in a drug treatment program, and stipulated that his termination from such aprogram would result in the imposition of a prison sentence of 11/3 to 4 years. On May10, 2007—less than two weeks before defendant's five-year term of probation was scheduled toexpire—the Warren County Probation Department filed a petition alleging that defendant hadviolated the terms of his probation by failing to complete "all of the requirements, responsibilities anddirectives of the Warren County Drug Treatment Court." As a result, County Court issued a declarationof delinquency that served to toll the five-year period of probation. An amended petition wassubsequently filed, which alleged that defendant had also violated the terms of his probation by failing toreport to his probation officer on June 4, 2007. After a hearing, County Court found that defendant hadviolated the terms of his probation and, as a result, revoked his probation and resentenced defendant toa prison term of 11/3 to 4 years. Defendant now appeals.[*2]

Initially, we find no merit to defendant's challenge to the validityof the declaration of delinquency. It was issued in compliance with CPL 410.30 and was based uponinformation set forth by defendant's probation officer in the violation petition. Furthermore, the petition,amended petition and detailed letter from the People delineating defendant's offending conductprovided defendant with ample notice of the nature of the allegations that had been made against him(see CPL 410.30, 410.70 [2]). The filing of the declaration of delinquency on May 10,2007—before defendant's period of probation had, in fact, expired—served to toll theperiod that defendant was required to remain on probation and, as a result, defendant was still onprobation when he failed to report to his probation officer on June 4, 2007 (see Penal Law§ 65.15 [2]; People v Mills, 45AD3d 892, 895 [2007], lv denied 9 NY3d 1036 [2008]; People v Shabazz, 12 AD3d 782, 783[2004]). His failure to timely appear for this appointment with his probation officer constituted asignificant violation of the terms of his probation and provided ample support for County Court'sdecision to terminate probation (see People vProvost, 35 AD3d 899, 900 [2006]; People v Walts, 34 AD3d 1043, 1043 [2006], lv denied 8NY3d 850 [2007]).^[FN*]

However, inasmuch as defendant successfully completed all but 11 days of his five-year probationterm, we find, on these facts, that the imposition of a prison sentence of 11/3 to 4 years isoverly harsh and it is appropriate to reduce the sentence in the interest of justice to the legally minimumprison term of 1 to 3 years (see CPL 470.15 [2] [c]; [6] [b]).

Cardona, P.J., Peters, Rose and Stein, JJ., concur. Ordered that the judgment is modified, as amatter of discretion in the interest of justice, by reducing the sentence imposed to 1 to 3 years, and, asso modified, affirmed, and matter remitted to the County Court of Warren County for furtherproceedings pursuant to CPL 460.50 (5).

Footnote *: We agree with defendant that theinitial petition's stated violation—that defendant failed to timely complete the drugprogram—would have been insufficient, by itself, to support a termination of his probation. Thisis especially true since the petition did not allege that defendant was in any way responsible for notcompleting the drug treatment program prior to the expiration of his period on probation. However, thefiling of the declaration of delinquency automatically tolled the probationary period and defendant'ssubsequent failure to meet with his probation officer fell within the probationary period and, as such,was properly included in the amended petition.