| People v Garner |
| 2008 NY Slip Op 09116 [56 AD3d 951] |
| November 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James Garner,Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Ian H. Silverman of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the Supreme Court (Griffin, J.), rendered April 30,2007 in Rensselaer County, which revoked defendant's probation and imposed a sentence ofimprisonment.
In 2003, defendant pleaded guilty to sodomy in the first degree and two counts ofendangering the welfare of a child. He was sentenced to a negotiated term of six months in jailand 10 years of probation. In 2007, defendant was charged with violating the conditions of hisprobation that required him to maintain full-time verifiable employment, report as directed to hisprobation officer, fully cooperate with sex offender counseling and notify his probation officerwhen he established any significant relationship. Following a hearing, Supreme Court, findingthat the allegations in the petition had been sustained, revoked defendant's probation andresentenced him to a prison term of 25 years followed by a five-year period of postreleasesupervision.
Initially, we agree with defendant that the testimony of Richard Hamill, a clinicalpsychologist, regarding defendant's progress in the sex offender treatment program consisted ofhearsay, which is insufficient by itself to establish a violation of probation (see People v Spragis, 5 AD3d 814,814-815 [2004], lv denied 2 NY3d 807 [2004]; People v Costanza, 281 AD2d120, [*2]124 [2001], lv denied 96 NY2d 827 [2001]). Onthe other hand, such hearsay evidence is admissible and may be considered with other proof in aprobation violation hearing (see id.). In this matter, Supreme Court properly consideredHamill's testimony along with proof from defendant's probation officer that defendant did notreport as scheduled on six occasions in 2005 and 2006, did not disclose his involvement in asignificant relationship and maintained pornographic pictures on his computer in violation ofcounseling program mandates. Evidence was also presented that defendant's pay stubs did notreflect full-time employment. Although defendant offered exculpatory testimony, givingdeference to the court's credibility determinations (see People v Cruz, 35 AD3d 898, 899 [2006], lv denied 8NY2d 845 [2007]), we find no reason to disturb its conclusion that defendant's probationviolations were proven by a preponderance of the evidence (see CPL 410.70 [3]; People v Provost, 35 AD3d 899,900 [2006]).[FN*]
Finally, while we find no abuse of discretion in Supreme Court imposing a term ofimprisonment, we do find merit in defendant's contention that his sentence is harsh andexcessive, and we reduce it in the interest of justice (see e.g. People v Cruz, 41 AD3d 893, 897 [2007], lv denied10 NY3d 933 [2008]; People v Lustgarten, 118 AD2d 1033, 1034-1035 [1986]). Whilewe are mindful of the very serious nature of the underlying crimes, under the circumstances ofthis case, including defendant's criminal history and the nature of the probationary violations, wefind a sentence of 10 years followed by five years of postrelease supervision to be appropriate.
Mercure, Peters, Carpinello and Kavanagh, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by reducing the sentence imposed to10 years followed by five years of postrelease supervision, and, as so modified, affirmed.
Footnote *: In view of the foregoingregarding the admissibility of hearsay testimony in probation violation hearings, we need notaddress defendant's contention that he was denied the effective assistance of counsel based upondefense counsel's failure to object to or move to strike Hamill's hearsay testimony.