| People v Bevilacqua |
| 2012 NY Slip Op 00257 [91 AD3d 1120] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MarkBevilacqua, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Ulster County (Schneer, J.),rendered October 8, 2009, which revoked defendant's probation and imposed a sentence ofimprisonment.
In December 2008, defendant pleaded guilty to possessing an obscene sexual performance bya child in connection with his possession of certain materials on his personal computer. OnFebruary 10, 2009, defendant was sentenced to a 10-year period of probation for his convictionof that crime. The conditions of his probation included, among other things, a prohibition againstpossessing any materials depicting nudity or sexual conduct. In April 2009, defendant madestatements to Brent Warberg, a polygraph examiner, indicating that he knowingly possessed suchmaterials. Warberg communicated this admission to defendant's probation officer, Cynthia King,who obtained an order to search defendant's residence for contraband. The probation officers andlaw enforcement personnel who conducted the search found dozens of videos depicting sexualconduct, as well as several SD cards which contained one or more images of young girls naked orengaged in sexual acts. Supreme Court (Sise, J.) issued a declaration of delinquency (seeCPL 410.30). After a hearing, County Court (Schneer, J.) found that defendant had violated acondition of his probation. Defendant's probation was thereafter revoked and he was sentenced toa 60-day term of incarceration, to be followed by the continuation of his probation. Defendantnow appeals.[*2]
We affirm. The People have the burden of proving by apreponderance of the evidence that defendant violated a term of his probation (see CPL410.70 [3]; People v Rockefeller, 79AD3d 1527, 1527 [2010], lv denied 16 NY3d 862 [2011]). Probation violationhearings are summary in nature and evidence presented thereat may include hearsay, althoughthat may not be the sole basis for the finding of a violation (see People v DeMoney, 55 AD3d 953, 954 [2008]; People v Trathen, 2 AD3d 1065[2003], lv denied 1 NY3d 635 [2004]).
Here, the People met their initial burden of demonstrating that defendant violated a conditionof probation by introducing into evidence the terms of his probation, the report prepared byWarberg, the physical evidence confiscated from defendant's home[FN*]and the testimony of King. Although Warberg's report contained hearsay, the physical evidence,alone, was sufficient to demonstrate a violation. In addition, defendant admitted at the hearingthat he was aware of the conditions of his probation and that he possessed prohibited materials athis house. Thus, the burden shifted to defendant to establish a justifiable excuse for his violation(see People v Osborne, 38 AD3d1132, 1132 [2007], lv denied 9 NY3d 849 [2007]). To that end, defendant attemptedto attribute his possession of the prohibited materials to King's failure to provide him with a timeframe within which he had to rid his home of the materials, the quantity of items in his home thathe had to sort through and his difficulty in disposing of the contraband. County Court explicitlyfound defendant's testimony in that regard to be incredible and, on our review of the record, weperceive no abuse of discretion and, therefore, decline to disturb County Court's determinationthat defendant failed to meet his burden of establishing a justifiable excuse for his violation ofthe terms of his probation (see People vOehler, 52 AD3d 955, 956 [2008], lv denied 11 NY3d 792 [2008]; People vOsborne, 38 AD3d at 1132).
Defendant's remaining contentions have been considered and are without merit.
Spain, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant's argument that suchevidence was illegally obtained and should have been suppressed is not preserved for our reviewin view of his failure to seek suppression of the items on the ground that they were the result ofan illegal search (see People vSoprano, 27 AD3d 964, 965 [2006]).