| People v Coupe |
| 2015 NY Slip Op 00659 [124 AD3d 1141] |
| January 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vThomas J. Coupe, Appellant. |
Margaret McCarthy, Ithaca, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Kevin M. O'Shea of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered May 22, 2012, which revoked defendant's probation and imposeda sentence of imprisonment.
In 2008, defendant pleaded guilty to burglary in the third degree and grand larceny inthe fourth degree. County Court sentenced him to six months in jail and five years ofprobation and ordered him to pay restitution. In 2012, two violation petitions were filedalleging that he failed to comply with numerous conditions of his probation. Following ahearing, the court found that defendant committed seven violations of the conditions ofhis probation, revoked his probation and sentenced him to an aggregate prison term of 1to 3 years. Defendant appeals.
Defendant received the effective assistance of counsel. Counsel cannot be deemedineffective for failing to raise a baseless argument (see People v Addison, 219AD2d 782, 783 [1995]). Although the record contains an order transferring defendant'sprobation to another county and does not contain an order transferring it back toChemung County, there are several references to the transfer back, and this Court cantake judicial notice of such an order, which we have reviewed (see People v England, 48AD3d 838, 838 [2008]). Thus, there is no merit to defendant's current assertions thattrial counsel should have argued that County Court lacked jurisdiction and that theamended conditions of probation were invalid because the Probation Department inChemung County lacked jurisdiction.
Defendant contends that counsel was ineffective by not objecting to the lack of [*2]reasonable notice of the allegations in the second violationpetition. A defendant is entitled to "a reasonable adjournment . . . to enablehim [or her] to prepare for the hearing" (CPL 410.70 [2]). More than half of theallegations were contained in the first petition, it is unclear how long counsel was awareof the additional allegations, and counsel may have had a tactical reason for notrequesting an adjournment (seePeople v Green, 31 AD3d 1048, 1051 [2006], lv denied 7 NY3d 902[2006]). Counsel used the incorrect date when questioning the only defense witnessabout defendant's behavior regarding a certain incident. This may have been error, butCounty Court recognized the incorrect date and asked clarifying questions regarding theproper date. Considering this further questioning, we cannot say that counsel's errorprejudiced defendant.
Defendant asserts that counsel failed to challenge the sufficiency of the evidence, butcounsel's cross-examination of the probation officer raised factual questions about thePeople's proof. The evidence was sufficient to prove the violation of probation by apreponderance of the evidence as to all but one of the allegations. Hearsay evidence isadmissible and may be considered, but it cannot alone support a finding of a probationviolation (see People vFilipowicz, 111 AD3d 1022, 1022-1023 [2013], lv denied 22 NY3d1156 [2014]; People vDeMoney, 55 AD3d 953, 954 [2008]). While only hearsay was submitted tosupport the allegation that defendant failed to successfully complete an angermanagement class, rendering the proof insufficient on that allegation (see People vDeMoney, 55 AD3d at 954), the remaining allegations were supported by otherevidence, including defendant's admissions to his probation officer, which was sufficientto meet the legal standard (seePeople v Bower, 9 AD3d 603, 604 [2004], lv denied 3 NY3d 704[2004]). Counsel elicited evidence that defendant may not have been financially able topay the restitution and the costs associated with an ordered evaluation, which could havemade two of his violations nonwillful. Despite this evidence and the inferences thatcould be drawn from it, County Court could have determined that defendant's violationswere willful based on proof that defendant had paid a large percentage of the restitutionand then stopped paying without explanation five months prior to the hearing, and thathis probation officer advised him to apply for Medicaid to cover the costs of theevaluation. Viewing the record as a whole, defendant was not deprived of meaningfulrepresentation.
Considering the numerous chances that defendant was given to avoid incarceration instate prison, both in connection with his initial plea and when he previously violated hisprobation, along with the multiple conditions that he was found to have violated, we donot find County Court's sentence to be harsh or excessive (see People v Pixley, 117 AD3d1102, 1103 [2014], lv denied 24 NY3d 1087 [2014]; People v Filipowicz, 111 AD3d at 1023).
Lahtinen, J.P., Rose, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.