| People v Dettelis |
| 2016 NY Slip Op 02245 [137 AD3d 1722] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v John R. Dettelis, Appellant. |
Michael L. D'Amico, Buffalo, for defendant-appellant.
Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of counsel),for respondent.
Appeal from a judgment of the Cattaraugus County Court (Ronald D. Ploetz, J.),rendered January 21, 2014. The judgment revoked defendant's sentence of probation andimposed a sentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the declaration of delinquency is vacated and the sentence of probation isreinstated.
Memorandum: On appeal from a judgment revoking his sentence of probationimposed upon his conviction of driving while intoxicated (Vehicle and Traffic Law§ 1192 [2]) and imposing a sentence of incarceration, defendant contendsthat County Court erred in finding that he violated a condition of his probation. Weagree.
" 'A violation of probation proceeding is summary in nature and a sentenceof probation may be revoked if the defendant has been afforded an opportunity to beheard' " (People vWheeler, 99 AD3d 1168, 1169 [2012], lv denied 20 NY3d 989 [2012]).The People have the burden of establishing by a preponderance of the evidence thatdefendant violated the terms and conditions of his probation (see CPL 410.70 [3];Wheeler, 99 AD3d at 1169-1170; People v Cangialosi, 277 AD2d 897,897 [2000]).
Here, the evidence at the hearing established that defendant had an argument with acourt clerk at the town courthouse over obtaining access to certain paperwork, whichresulted in defendant being asked to leave the courthouse. Following that incident, apolice officer, who expressly disclaimed that he was conducting an investigation, wasdispatched to defendant's residence to advise defendant not to return to the courthouseand to have his attorney contact the court going forward. With respect to the interactionat his residence, defendant testified that the police officer inquired as to what hadoccurred at the courthouse, acted as though he was there to assist defendant, andthereafter accompanied defendant and his wife back to the courthouse to facilitate theirability to vote because it was election day. We defer to the court's determination creditingthe testimony of defendant's probation officer that defendant did not notify the probationdepartment about his contact with the police officer (see Wheeler, 99 AD3d at1170; People v Perna, 74AD3d 1807, 1807 [2010], lv denied 17 NY3d 716 [2011]). Contrary to thePeople's contention, however, the terms of defendant's probation did not require that henotify the probation department about "any contact" with the police (cf. People v Murray, 12 AD3d838, 839 [2004], lv denied 4 NY3d 766 [2005]). Rather, the subjectprobation condition required that defendant "notify [a] [p]robation [o]fficer within 48hours if [he was] arrested or questioned by any law enforcement officials." Under theparticular facts of this case, we conclude that the evidence at the hearing does notestablish that the interaction between defendant and the police officer amounted todefendant being "questioned," which would have triggered his obligation to notify aprobation officer. The court's finding that defendant violated a condition of his probationis therefore not supported by a preponderance of the evidence (see CPL 410.70[3]; People v Greiner, 256 AD2d 1132, 1132 [1998], lv denied 93 NY2d873 [1999]; cf. People vPomales, 37 AD3d 1098, [*2]1098 [2007], lvdenied 8 NY3d 949 [2007]). Present—Peradotto, J.P., Lindley, DeJoseph,Curran and Scudder, JJ.