| People v Hill |
| 2017 NY Slip Op 02477 [148 AD3d 1469] |
| March 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v HerbertHill, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered September 10, 2015, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant was charged with multiple crimes after he violated an order of protection byhaving contact with a former girlfriend. He pleaded guilty to criminal contempt in the first degreein satisfaction of the charges and was sentenced to a split sentence of six months in jail and fiveyears of probation. Shortly after sentencing, defendant had further contact with his formergirlfriend and fled from the police when they tried to apprehend him. As a result, defendant wasarrested and charged with criminal contempt in the first degree and resisting arrest, as well asviolating certain conditions of his probation as set forth in a declaration of delinquency and anamended declaration of delinquency.[FN1] Following a hearing on the probationviolations, defendant was found guilty of violating condition five as alleged in specifications two,three and four of the amended declaration of delinquency. Consequently, his probation wasrevoked and he was sentenced to 1
[*2] Initially, we note that defendant'schallenge to the sufficiency of the declaration of delinquency has not been preserved for ourreview due to his failure to raise an appropriate objection before County Court (see CPL470.05 [2]; People v Plantz, 290 AD2d 594, 594 [2002], lv denied 98 NY2d 639[2002]; People v Justin ZZ., 238 AD2d 810, 810 [1997]). Turning to the merits, CPL410.70 (3) requires a showing by "a preponderance of the evidence" that defendant violated acondition of his probationary sentence (see People v Beauvais, 101 AD3d 1488, 1489 [2012]). The recordreflects that defendant was not provided with a written copy of the conditions of probation thathe was charged with violating as required by the statute and did not review the conditions withhis probation officer (see CPL 410.10 [1]; People v Britton, 158 AD2d 932, 933[1990], lv dismissed and denied 76 NY2d 785 [1990]). County Court nevertheless tookjudicial notice of its own prior proceedings, in which defendant was informed that both the termsof the order of protection and the conditions of his probation prohibited him from having contactwith his former girlfriend and her family (see People v Beauvais, 101 AD3d at 1489). Inany event, CPL 410.10 (2) provides that probation may be revoked upon "[c]ommission of anadditional offense, other than a traffic infraction, after imposition of a sentence of probation"regardless of whether defendant was informed of the conditions of probation (see People vBritton, 158 AD2d at 933).
Here, the police officer who responded to the incident that led to the present violationproceedings testified that he received a call from the dispatcher indicating that defendant wasattempting to gain entry to his former girlfriend's apartment in violation of the order ofprotection. When the officer arrived on the scene, he witnessed defendant trying to open theapartment door and yelling obscenities. He related that, when he attempted to take defendant intocustody, defendant physically resisted and then fled until he was eventually apprehended.Defendant was charged, as a result of this conduct, with criminal contempt in the first degree andresisting arrest. In view of the uncontested evidence establishing that defendant violated acondition of his probation and also committed criminal acts, County Court did not err in revokinghis probation.[FN2]
As for the sentence, we find no merit to defendant's claim that it is harsh and excessive.Defendant has a history of criminal conduct and violated the order of protection at issueapproximately one week after it was imposed by County Court. Accordingly, we find noextraordinary circumstances or any abuse of discretion warranting a reduction of the sentence inthe interest of justice (see People v Abar, 290 AD2d 592, 593-594 [2002], affd 99NY2d 406 [2003]). We have considered defendant's remaining contentions and find them to bewithout merit.
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The first three specifications arethe same in the declaration of delinquency and the amended declaration of delinquency.
Footnote 2:Although the record does notindicate whether defendant was convicted of these crimes, a conviction was not necessary towarrant revocation (see People v Schneider, 188 AD2d 754, 756 [1992], lvdenied 81 NY2d 892 [1993]).