| People v Hare |
| 2015 NY Slip Op 00663 [124 AD3d 1148] |
| January 29, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael B. Hare, Appellant. |
Paul J. Connolly, Delmar, for appellant.
G. Scott Walling, Special Prosecutor, Schenectady, for respondent.
Clark, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered May 6, 2013, which revoked defendant's probation and imposed a sentenceof imprisonment.
In September 2012, defendant pleaded guilty to assault in the second degree as theresult of an incident wherein he injured a State Trooper who was attempting to arresthim. County Court imposed the agreed-upon sentence of time served to be followed byfive years of probation. Defendant was almost immediately charged with violating theconditions of his probation by, among other things, calling a former girlfriend and hermother on multiple occasions and ignoring the direction of his probation officer not to doso. Defendant contested the allegations and, following a hearing, County Courtdetermined that defendant had violated the terms of his probation. Defendant wasthereafter resentenced to two years in prison, to be followed by three years of postreleasesupervision, and he now appeals.
The People bear the burden of proving a probation violation by a preponderance ofthe evidence (see CPL 410.70 [3]; People v Lapham, 117 AD3d 1341, 1341 [2014], lvdenied 23 NY3d 1064 [2014]; People v Filipowicz, 111 AD3d 1022, 1022 [2013], lvdenied 22 NY3d 1156 [2014]). As defendant correctly notes, hearsay evidence willnot support the finding of a probation violation by itself (see People v Filipowicz,111 AD3d at 1022-1023). Inasmuch as defendant's probation officer testified thatdefendant had admitted to making several of the offending calls despite having beenwarned not to do so, however, nonhearsay evidence supports the finding of a violation(see People v Holland, 95AD3d 1504, 1505 [2012], lv denied 19 NY3d 974 [2012]; People v Spady, 25 AD3d881, 882 [2006]).
[*2] We also rejectdefendant's contention that he received ineffective assistance of counsel. "A contentionof ineffective assistance of trial counsel requires proof of less than meaningfulrepresentation, rather than simple disagreement with strategies and tactics" (People vRivera, 71 NY2d 705, 708-709 [1988] [citation omitted]; see People v Barboni, 21NY3d 393, 405-406 [2013]). Defendant specifically claims that counsel wasineffective for inadvertently eliciting on cross-examination the fact that defendant hadadmitted making the forbidden telephone calls to the probation officer. The recordreflects that the cross-examination was part of a legitimate trial strategy of calling thebasis for the officer's knowledge of the violations into question, however, and it was notworded or designed to elicit damaging testimony (see People v McCloud, 121 AD3d 1286, 1292 [2014];People v Yelle, 303 AD2d 1043, 1044 [2003], lv denied 100 NY2d 626[2003]). When viewed in totality, we have no difficulty concluding that defendantreceived meaningful representation (see People v Wingo, 103 AD3d 1036, 1037 [2013], lvdenied 21 NY3d 1021 [2013]; People v Brickle, 244 AD2d 700, 702 [1997],lv denied 91 NY2d 889 [1998]).
Defendant additionally argues that County Court failed to provide an adequatestatement of its reasoning in revoking his probation (see Gagnon v Scarpelli, 411US 778, 785-786 [1973]; People v McCloud, 205 AD2d 1024, 1025 [1994],lv denied 86 NY2d 738 [1995]). Defendant failed to preserve that argument byobjecting to the sufficiency of County Court's findings, however, and we perceive noreason to take corrective action in the interest of justice (see CPL 470.05 [2]; see e.g. People v Junior, 119AD3d 1228, 1231 [2014], lv denied 24 NY3d 1044 [2014]). Defendant'sremaining contentions, including that the sentence imposed was harsh and excessive,have been considered and found to be lacking in merit.
McCarthy, J.P., Garry, Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.