| People v Montenegro |
| 2017 NY Slip Op 05973 [153 AD3d 553] |
| August 2, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Montenegro, Appellant. |
Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Marion M. Tang of counsel), forrespondent.
Appeal by the defendant from an amended judgment of the County Court, Suffolk County(Camacho, J.), rendered June 26, 2015, revoking a sentence of probation and restitutionpreviously imposed by the same court, upon a finding that he violated a condition thereof,without a hearing, and imposing a sentence of imprisonment and restitution upon his previousconviction of grand larceny in the third degree.
Ordered that the amended judgment is reversed, on the law, and the matter is remitted to theCounty Court, Suffolk County, for further proceedings in accordance herewith.
A court may not revoke a sentence of probation without finding that the defendant hasviolated a condition of the sentence and affording the defendant an opportunity to be heard(see CPL 410.70 [1]). The statutory requirements may be satisfied either by conducting arevocation hearing pursuant to CPL 410.70 (3) (see People v Lora, 162 AD2d 719[1990]), or through an admission by the defendant of the violation, coupled with a proper waiverof the defendant's right to a hearing (seePeople v McDevitt, 97 AD3d 1039, 1040 [2012]).
Under the circumstances of this case, the defendant's contention that the County Court erredin finding that he violated the conditions of his probation without holding a hearing is not subjectto the preservation requirement (cf.People v Williams, 27 NY3d 212, 214 [2016]). The transcript of the resentencingproceeding confirms that the defendant had no reasonable opportunity to object to the court'sprocedure before the finding of probation violation was made, and the defendant was resentencedimmediately thereafter.
Contrary to the People's contention, the record contains no evidence that the defendant freelyadmitted to the violation of probation. Nor is there any evidence that the defendant waived hisright to a revocation hearing pursuant to CPL 410.70. Rather, the County Court, withoutconducting any hearing, found "by a preponderance of the evidence" that the defendant hadviolated the conditions of his probation. This was error (see People v Lora, 162 AD2d719 [1990]).
Accordingly, the amended judgment must be reversed and the matter remitted to the CountyCourt, Suffolk County, for a revocation hearing pursuant to CPL 410.70 and a new [*2]determination thereafter (see People v Lora, 162 AD2d 719[1990]).
In light of our determination, we do not reach the parties' remaining contentions. Chambers,J.P., Miller, Duffy and Connolly, JJ., concur.