People v Filipowicz

2013 NY Slip Op 07518 [111 AD3d 1022]

November 14, 2013

Appellate Division, Third Department

As corrected through Wednesday, December 25, 2013

The People of the State of New York, Respondent, v RalphFilipowicz, Appellant.

—[*1]Thomas F. Garner, Middleburgh, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.

Spain, J. Appeals (1) from a judgment of the County Court of Ulster County(McGinty, J.), rendered June 30, 2010, which revoked defendant's probation andimposed a sentence of imprisonment, and (2) from a judgment of said court, renderedFebruary 23, 2011, which resentenced defendant.

In 2008, defendant pleaded guilty to rape in the second degree and criminal contemptin the first degree and was sentenced to an aggregate term of probation of 10 years. Inaddition, a 10-year order of protection was issued precluding defendant from having anycontact with the victim. In 2010, defendant's probation officer filed an affidavit ofviolation of probation alleging that, while defendant was incarcerated at the UlsterCounty jail on an unrelated matter, he enlisted another inmate to call the rape victimseveral times, thereby violating conditions of his probation requiring him to refrain fromthe commission of any crimes, refrain from contact with the victim and abide by theterms of any order of protection. Following a hearing at which County Court found thatdefendant violated his probation, the court revoked his probation and imposed concurrentprison sentences of five years on the rape conviction and 11/3 to 4 years onthe criminal contempt conviction. Recognizing that the sentence imposed upon the rapeconviction was not authorized, County Court resentenced defendant to a prison term of21/3 to 7 years on that conviction. Defendant now appeals.[*2]

Contrary to defendant's claims, the People provedby a preponderance of the evidence that defendant violated a condition of his probation(see CPL 410.70 [3]; People v Bevilacqua, 91 AD3d 1120, 1120 [2012]; People v Hunter, 62 AD3d1207, 1208 [2009]; Peoplev DeMarco, 60 AD3d 1107, 1108 [2009]). Hearsay evidence is admissible inprobation violation proceedings, although such evidence will not alone support thefinding of a violation (see People v Bevilacqua, 91 AD3d at 1120; People vHunter, 62 AD3d at 1208). In this case, in addition to the probation officer's hearsaytestimony and the terms of defendant's probation, nonhearsay evidence was submittedthrough the testimony of the inmate witness, who placed the phone calls to the victim atdefendant's behest, and the victim's mother, who had firsthand knowledge of the phonecalls. According appropriate deference to County Court's credibility determinations, wefind that the record amply supports the finding that defendant violated the terms of hisprobation (see People v DeMarco, 60 AD3d at 1108). Given the seriousness ofthe underlying crime, defendant's criminal history and his demonstrated inability to abideby the terms of his probation, we find no abuse of discretion in County Court'sresentence, nor do we perceive any extraordinary circumstances that would warrant areduction of the resentence (seePeople v D'Entremont, 95 AD3d 1507, 1508-1509 [2012], lv denied 19NY3d 1025 [2012]; People v Hunter, 62 AD3d at 1208). Defendant's remainingcontention, that County Court erred in denying his motion to dismiss or hold theproceeding in abeyance until resolution of pending criminal charges, is unavailing(see People v Conway, 263 AD2d 548, 549 [1999], lv denied 94 NY2d861 [1999]; see also People vRuff, 50 AD3d 1167, 1168 [2008]).

Stein, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgments areaffirmed.