People v Padworski (2009 NY Slip Op 05170)

People v Padworski

2009 NY Slip Op 05170 [63 AD3d 558]

June 23, 2009

Appellate Division, First Department

As corrected through Wednesday, August 5, 2009

The People of the State of New York,Respondent,
v
Johnathan Padworski, Also Known as Gerald Davis,Appellant.

—[*1]Richard M. Greenberg, Office of the Appellate Defender, New York (Gregory S.Chiarello of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Scott Shorr of counsel), forrespondent.

Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), renderedMay 23, 2007, convicting defendant of violation of probation, revoking his prior sentence ofprobation and resentencing him to a term of 11/3 to 4 years, unanimously reversed,on the law, the conviction of violation of probation vacated, defendant's probationary statusreinstated with respect to this indictment, and the matter remitted for further proceedings on theviolation of probation.

A court "may not revoke a sentence of probation . . . unless (a) the court hasfound that the defendant has violated a condition of the sentence and (b) the defendant has hadan opportunity to be heard" (CPL 410.70 [1]). In addition to this statutory right, a person chargedwith violation of probation has a constitutional right to dispute the existence of the violation orto present a justifiable excuse (see Black v Romano, 471 US 606, 612 [1985]). Theproceedings of August 16 and September 13, 2006 did not provide defendant with a meaningfulopportunity to dispute the alleged violation of probation based on his August 2004 conviction(see People v Oskroba, 305 NY 113, 117 [1953]; People v Almonte, 50 AD3d696 [2008]). While CPL 410.70 (3) provides for a summary hearing, it does not permit asummary denial of any hearing. Rather than asking defendant whether he wished to make anystatement with respect to the violation (see CPL 410.70 [2]), the court refused to permithim to complete the [*2]statement he was clearly seeking tomake. Defendant cannot be faulted for failing to explain why he was not in violation of hisprobation, since the court prevented him from doing so. Concur—Gonzalez, P.J., Sweeny,Buckley, Renwick and Freedman, JJ.