| People v Turner |
| 2016 NY Slip Op 01010 [136 AD3d 1111] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWalter Turner, Appellant. |
Craig Meyerson, Latham, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Hannah Stith Long ofcounsel), for respondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered December 23, 2013, which revoked defendant's probation and imposed asentence of imprisonment.
Defendant pleaded guilty to attempted criminal possession of a controlled substancein the third degree and was sentenced to time served and five years of probation. Eightdays later, defendant was observed by police on a city street late at night pushing awoman against a wall, and he was a arrested for assault in the third degree. A violation ofprobation petition was filed alleging that defendant violated condition five of hisprobation, which required that he "[r]efrain from committing any additional crime,offense, violation or other illegal activity." Following a hearing, County Courtdetermined that defendant had violated the terms of his probation, revoked his probationand imposed a prison sentence of 3
We affirm. Contrary to defendant's contentions, the People established by apreponderance of the evidence that he violated condition five of his probation(see CPL 410.70 [3]; People v Eggsware, 125 AD3d 1057, 1057 [2015], lvdenied 25 NY3d 1162 [2015]). At the hearing, in addition to the uncontested proofof defendant's probation conditions, a police officer testified that he personally observeddefendant pursuing the victim on foot and then repeatedly pushing her from behind, faceforward into a brick wall. The victim reported to police that defendant, a stranger to her,had demanded sex for money and, when she tried to get away, he [*2]pushed her against a wall, injuring her back. Defendant, incontrast, denied pushing the victim and claimed that she had become enraged when herefused her request for money. While the victim did not testify at the hearing, her hearsayaccount was admissible in conjunction with the officer's account (see CPL 410.70[3]; People v Coupe, 124AD3d 1141, 1142 [2015]). According appropriate deference to County Court'sdetermination to credit the officer's testimony, the record amply supports the court'sdetermination that defendant's conduct on the day in question violated condition five ofhis probation (see People vFilipowicz, 111 AD3d 1022, 1023 [2013], lv denied 22 NY3d 1156[2014]).
While defendant claims that the People were required to prove that he committed thecrime of assault in the third degree because his arrest on that misdemeanor charge waslisted on the violation of probation petition as a basis for the violation, this point was notraised at the hearing and, thus, it is unpreserved for our review (see People v Nolan, 133 AD3d1040, 1041 [2015]; Peoplev Crawford, 61 AD3d 774, 774 [2009], lv denied 13 NY3d 743 [2009]).Were we to address this claim, we would reject it as the violation petition set forth theprobation condition alleged to have been violated and "a reasonable description of thetime, place and manner in which the violation occurred" (CPL 410.70 [2]), therebyproviding fair notice of the charged misconduct. Further, the People did not limit theirtheory on the violation petition to the crime of assault, and both parties in theirsummations specifically addressed the issue of whether defendant's conduct constitutedharassment, a violation, in contravention of condition five (see Penal Law§ 240.26). Finally, the subsequent dismissal of the assault and harassmentcharges against defendant did not preclude the finding that he had, by his conduct,violated this condition of his probation (see People v Ruff, 50 AD3d 1167, 1168 [2008]; Peoplev Brown, 268 AD2d 592, 593 [2000], lv denied 94 NY2d 945 [2000]).Defendant's remaining claims have been considered and determined to lack merit.
Peters, P.J., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.