| People v Songa |
| 2015 NY Slip Op 07704 [132 AD3d 1071] |
| October 22, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBertin Songa, Appellant. |
Carolyn B. George, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered March 26, 2014, which revoked defendant's probation and imposed asentence of incarceration.
Defendant, a French-speaking refugee from the Democratic Republic of Congo,pleaded guilty to welfare fraud in the third degree and was sentenced to time served, fiveyears of probation and restitution in the amount of $9,511.60 to be paid in monthlyinstallments. Two years later, he was charged with violating the conditions of hisprobation by, among other things, failing to report to his probation officer as directed onthree separate occasions and failing to make monthly restitution payments. Following ahearing, County Court found that defendant violated the terms of his probation, revokedhis probation and sentenced him to one year in jail with continued payment of restitution.Defendant appeals.
Defendant's contention that County Court failed to afford him an opportunity tomake a statement at his initial appearance on the violation petition is unpreserved for ourreview (see People vStachnik, 101 AD3d 1590, 1591 [2012], lv denied 20 NY3d 1104[2013]) and, in any event, without merit (see id.; People v McKoy, 303AD2d 842, 842 [2003], lv denied 100 NY2d 564 [2003]; compare People v Padworski,63 AD3d 558, 559 [2009]). Further, his assertion that he was denied the effectiveassistance of counsel implicates matters outside of the record and is therefore moreappropriately addressed in the context of a CPL article 440 motion (see People v Pickett, 128AD3d 1275, 1276 [2015], lv denied 26 NY3d 933 [2015]; People v Patrick, 125 AD3d1053, 1053-1054 [2015], lv denied 25 NY3d 991 [2015]).
Turning to the merits, the People have the burden of proving by a preponderance ofthe [*2]evidence that defendant violated a condition ofhis probation (see CPL 410.70 [3]; People v Eggsware, 125 AD3d 1057, 1057 [2015], lvdenied 25 NY3d 1162 [2015]). The allegations that defendant failed to report onAugust 6, 2013 and September 6, 2013 rested entirely upon hearsay testimony, whichalone cannot support a finding of a violation (see People v Coupe, 124 AD3d 1141, 1142 [2015]; People v Filipowicz, 111AD3d 1022, 1022-1023 [2013], lv denied 22 NY3d 1156 [2014]). Withregard to defendant's failure to report on October 10, 2013, the probation officer assignedto defendant's case at the time confirmed that a probationer could be excused from ascheduled meeting if he or she spoke with her directly. She further acknowledged thatdefendant had called and left a voice message for her earlier in the day in question, butstated that she was unable to understand the message due to defendant's accent andbecause the phone was "cutting in and out." In light of this evidence, we find thatdefendant acted "in good faith in an attempt to carry out the [reporting] conditions of theimposed probation" (People v Bowman, 73 AD2d 921, 922 [1980]; seePeople v Costanza, 281 AD2d 120, 124 [2001], lv denied 96 NY2d 827[2001]). Thus, under the particular circumstances of this case, his failure to report onOctober 10, 2013 should have been excused (see People v Bowman, 73 AD2d at922; compare People vMainville, 78 AD3d 1421, 1421-1422 [2010], lv denied 16 NY3d 833[2011]; People v Frierson, 1AD3d 711, 712 [2003]; People v Costanza, 281 AD2d at 124; People vAllen W., 129 AD2d 867, 867-868 [1987]).
The remaining basis for the probation violation was defendant's failure to makerestitution payments. It is settled that, "in revocation proceedings for failure to pay a fineor restitution, a sentencing court must inquire into the reasons for the failure to pay"(Bearden v Georgia, 461 US 660, 672 [1983]). "If the probationer willfullyrefused to pay or failed to make sufficient bona fide efforts legally to acquire theresources to pay, the court may revoke probation and sentence the defendant toimprisonment within the authorized range of its sentencing authority" (id.). If, onthe other hand, "the probationer could not pay despite sufficient bona fide efforts toacquire the resources to do so, the court must consider alternate measures of punishmentother than imprisonment" (id.; see People v Amorosi, 96 NY2d 180, 184[2001]; People vSouffrance, 94 AD3d 1024, 1024 [2012]).
Here, there was neither an adequate inquiry into defendant's ability to pay nor adetermination that his failure to pay was willful (see Bearden v Georgia, 461 USat 673-674; People v Souffrance, 94 AD3d at 1024). Accordingly, the mattermust be remitted for further proceedings to determine whether defendant's failure tomake the required monthly restitution payments was willful and, if so, whether suchfailure, standing alone, serves as a valid basis for revocation of his probation and theimposition of a sentence of incarceration (see id.).
Lahtinen, Garry and Rose, JJ., concur. Ordered that the judgment is reversed, on thelaw, and matter remitted to the County Court of Albany County for further proceedingsnot inconsistent with this Court's decision.