| People v Eggsware |
| 2015 NY Slip Op 01201 [125 AD3d 1057] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vShawn Eggsware, Appellant. |
Matthew C. Hug, Troy, for appellant.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Teresi, J.), rendered June11, 2013 in Albany County, which revoked defendant's probation and imposed asentence of imprisonment.
Defendant pleaded guilty to one count of driving while intoxicated, and wassentenced in November 2012 to time served and five years of probation. The conditionsof defendant's probation required that he, among other things, not own a motor vehiclewithout written permission, install an ignition interlock device on any vehicle that heowned or operated within 10 days of sentencing, maintain a residence and report asdirected. In February 2013, he was charged with violating those conditions. Following ahearing, Supreme Court determined that defendant willfully violated the terms andconditions of his probation, denied his motion to set aside the verdict, revoked hisprobation, and sentenced him to 1
We affirm. "The People have the burden of proving a probation violation by apreponderance of the evidence" (People v Lapham, 117 AD3d 1341, 1341 [2014], lvdenied 23 NY3d 1064 [2014] [citations omitted]). Moreover, "[h]earsay evidence isadmissible in probation violation proceedings, [but] such evidence will not alone supportthe finding of a violation" (People v Filipowicz, 111 AD3d 1022, 1022-1023 [2013],lv denied 22 NY3d 1156 [2014]). Here, the probation officer, who was assignedto handle defendant's case until probation was transferred from Albany County toRensselaer County, testified that defendant failed to comply with a letter directing him tocall her by a certain date. When defendant did contact her [*2]on December 3, 2012 after being sent another letter, theprobation officer informed him at that time, and again one week later, that he needed tosell his car or install an ignition interlock device. Shortly thereafter, defendant told theprobation officer that he transferred title to his mother; however, the probation officertestified—and the People submitted records from the Department of MotorVehicles showing—that the vehicle was still owned by and registered to defendanttwo months later. The probation officer also testified that she did not receive notice thatdefendant installed an ignition interlock device.
Further, the probation officer testified that defendant ultimately stopped reporting toher, although she directed him to do so repeatedly. Defendant claims on appeal that hebelieved that he was required to report to Rensselaer County, but documentationsubmitted at the hearing and the probation officer's testimony established that theRensselaer County Probation Department refused to accept transfer of probation, becausethey were unable to verify defendant's residence after visiting both the address at whichdefendant stated that he lived and his mother's residence, where defendant claimed toreceive mail. Although defendant's witness provided exculpatory testimony, SupremeCourt rejected it as lacking credibility. According deference to the court's credibilitydeterminations, we conclude that the People established by a preponderance of theevidence that defendant violated the terms of his probation (see People vLapham, 117 AD3d at 1341; People v Filipowicz, 111 AD3d at 1023).
Defendant's remaining contention has been considered and found to be lacking inmerit (see People v Pixley,117 AD3d 1102, 1103 [2014], lv denied 24 NY3d 1087 [2014]).
Lahtinen, J.P., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.