| People v Maldonado |
| 2007 NY Slip Op 07722 [44 AD3d 793] |
| October 9, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anibal Maldonado, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Phyllis Mintz ofcounsel), for respondent.
Appeal by the defendant from an amended judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered September 13, 2005, revoking a sentence of probation previouslyimposed by the same court (Marrero, J.), dated January 7, 2003, upon a finding that he hadviolated a condition thereof, after a hearing, and imposing a sentence of imprisonment upon hisprevious conviction of aggravated unlicensed operation of a motor vehicle in the first degree.
Ordered that the amended judgment is affirmed.
A sentence of probation may be revoked after a summary hearing on a violation of probationif the hearing court concludes that the defendant has violated a condition of his sentence(see CPL 410.70 [3]). A finding of a violation of probation must be based upon apreponderance of the evidence "which requires a residuum of competent legal evidence in therecord" (People v Rennie, 190 AD2d 830 [1993]; see People v Yutesler, 177AD2d 732 [1991]).
The Supreme Court properly found, based upon a preponderance of the evidence, that thedefendant violated a condition of his probation by knowingly operating a motor vehicle with asuspended license. Contrary to the defendant's contention, the admission of a certified copy of hisNew York State Department of Motor Vehicles driver abstract (hereinafter the DMV abstract)did not implicate the Confrontation Clause under the Sixth Amendment of the United StatesConstitution (see Crawford v Washington, 541 US 36 [2004]), because a probationrevocation hearing is not a criminal prosecution (see generally Gagnon v Scarpelli, 411US 778, 782 [1973]; People vHorvath, 37 AD3d 33, [*2]37 [2006]). In addition, theDMV abstract was properly admitted under the business records exception to the hearsay rule(see CPLR 4518 [a]; Crawford v Washington, 541 US 36 [2004]; People v Carney, 41 AD3d 1239[2007]; cf. People v Pacer, 6 NY3d504, 510 [2006]).
Moreover, the minutes of the October 23, 2002, plea hearing on his underlying conviction ofaggravated unlicensed operation of a motor vehicle in the first degree demonstrated that thedefendant was duly advised at the hearing that his license automatically would be suspended as aconsequence of his plea and would remain so until he cleared all his tickets (cf. People v Pacer, 6 NY3d 504,510 [2006]). The DMV abstract demonstrated that having failed to do so, his license was stillsuspended. Miller, J.P., Skelos, Covello and McCarthy, JJ., concur.