| People v Hunter |
| 2009 NY Slip Op 04129 [62 AD3d 1207] |
| May 28, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v StanleyHunter, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered October 26, 2006, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant pleaded guilty to burglary in the third degree and was sentenced in 2005 to sixmonths in jail and five years of probation. One of the terms of his probation was the impositionof a 6:00 p.m. curfew "unless you are working, and in counseling, or going to school or church."County Court subsequently found that defendant had violated that term and, accordingly,revoked his probation and resentenced him to a prison term of 2
The People were required to prove by a preponderance of the evidence that defendantviolated a condition of his probation (see CPL 410.70 [3]; People v DeMoney, 55 AD3d953, 954 [2008]). Defendant contends that the People failed to meet this obligation bypresenting only hearsay evidence of his violation of the curfew. While it is true that hearsayevidence alone will not support the finding of a probation violation (see People vDeMoney, 55 AD3d at 954), the arrest report offered here was not hearsay evidence becauseit came within an exception to the hearsay rule (see CPLR 4518 [a]; People v Maldonado, 44 AD3d793, 794 [2007], lv denied 9 [*2]NY3d 1035 [2008];Westchester Med. Ctr. v State FarmMut. Auto. Ins. Co., 44 AD3d 750, 753 [2007]). Inasmuch as the arrest report includes apolice officer's personal observations that defendant was "highly intoxicated" and screaming inthe middle of a road at approximately 2:30 a.m., County Court could readily infer from thoseobservations that none of the enumerated exceptions to defendant's curfew was the cause of hispresence on the street at that time.
Defendant also contends that his resentence was harsh and excessive. Given the seriousnessof the underlying crime, defendant's criminal history and his demonstrated inability to complywith the terms of his probation, we perceive neither an abuse of discretion by County Court northe presence of extraordinary circumstances that would warrant a reduction of the resentence(see People v Morris, 249 AD2d 628, 628-629 [1998]; People v McCowan, 226AD2d 759, 759-760 [1996], lv denied 88 NY2d 938 [1996]).
Defendant's remaining contentions with regard to the interpretation and alleged waiver of theprobation term imposing a curfew are not preserved for our review given his failure to raise thembefore County Court (see CPL 470.05 [2]; see e.g. People v Serrano, 269 AD2d219, 220 [2000], lv denied 95 NY2d 857 [2000]).
Mercure, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed.