| People v DeMoney |
| 2008 NY Slip Op 07804 [55 AD3d 953] |
| October 16, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelE. DeMoney, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Kane, J. Appeal from an order of the County Court of Otsego County (Coccoma, J.), enteredMay 31, 2006, which, among other things, modified the terms of defendant's probation.
In 2004, defendant was convicted and sentenced to five years of probation. Pursuant to two of theconditions of his probation, he is required to stay away from places where children under the age of 17are known to congregate and is prohibited from being responsible for the care of any child under 17,without prior permission from his probation officer. Defendant's probation officer filed a violationpetition alleging that defendant violated these conditions by being alone with his minor daughter on oneoccasion and with his minor son on two occasions, one of those occasions occurring in a public park.Following a hearing, County Court issued a declaration of delinquency and continued defendant'sprobation, modifying one condition by prohibiting defendant from residing or remaining overnight wherea child under the age of 17 is present. Defendant appeals.
The People were required to prove by a preponderance of the evidence that defendant violated acondition of his probation (see CPL 410.70 [3]; People v Bost, 39 AD3d 1027, 1027-1028 [2007]; People v Murray, 12 AD3d 838, 840[2004], lv denied 4 NY3d 766 [2005]). Hearsay evidence is admissible in a probationviolation hearing and may be considered along with other evidence, but the court cannot conclude that adefendant violated probation without "a [*2]residuum of competentlegal evidence" (People v Machia, 96 AD2d 1113, 1114 [1983]; see People v Spragis, 5 AD3d 814,815 [2004], lv denied 2 NY3d 807 [2004]; People v Hogan, 284 AD2d 655, 655[2001], lv denied 97 NY2d 641 [2001]; People v Marx, 222 AD2d 763, 764[1995]; People v Styles, 175 AD2d 961, 961 [1991], lv denied 79 NY2d 923[1992]). Aside from the hearsay testimony of a caseworker from the Department of Social Services ofwhat the children told her, no evidence was admitted at the hearing regarding defendant being alonewith any minor child or being in a public park where children may congregate (compare People v Bower, 9 AD3d603 [2004], lv denied 3 NY3d 704 [2004]). As the declaration of delinquency was basedsolely upon hearsay evidence, without any residuum of competent evidence, we reverse County Court'sdetermination and dismiss the petition.
While we agree with the People that County Court has the authority to enlarge or modifyconditions of probation at any time prior to the termination of a defendant's sentence (see CPL410.20 [1]), there was no basis in this record for expanding defendant's conditions to prevent him fromliving with his own children. Finally, defendant may not challenge the conditions of his original sentencewhich formed the basis of the violation petition, as he did not appeal from the original sentence and thetime to appeal has long since passed (see CPL 450.30 [3]; People v Wolfe, 254AD2d 528, 528 [1998], lv denied 92 NY2d 952 [1998]).
Cardona, P.J., Carpinello, Rose and Kavanagh, JJ., concur. Ordered that the order is reversed, onthe law and the facts, and probation violation petition dismissed.