| People v Simpson |
| 2017 NY Slip Op 08046 [155 AD3d 1246] |
| November 16, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v BrandonSimpson, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Ceresia, J.),rendered March 27, 2015, which revoked defendant's probation and imposed a sentence ofimprisonment.
In September 2013, defendant was sentenced to five years of probation upon his convictionof attempted criminal possession of a weapon in the third degree stemming from a domesticaltercation with the mother of his children. Upon sentencing, an order of protection was alsoissued against defendant in favor of the mother. In October 2014, while on probation, defendanthad a verbal and physical altercation with the mother and was subsequently arrested and chargedwith harassment, petit larceny and felony criminal contempt. Thereafter, defendant was chargedwith violating the conditions of his probation that prohibited him from committing any additionalcrimes and required him to abide by all active orders of protection. Following an evidentiaryhearing, County Court found that defendant violated these conditions, revoked his probation andresentenced defendant to 1 to 3 years in prison. Defendant now appeals.
We affirm. "[A] violation of probation proceeding is summary in nature and a sentence ofprobation may be revoked if the defendant has been afforded an opportunity to be heard and thecourt determines by a preponderance of the evidence that a condition of the probation has beenviolated" (People v Jordan, 148AD3d 1461, 1461-1462 [2017] [internal quotation marks and citations omitted]; seeCPL 410.70 [3]; People v Beauvais,101 AD3d 1488, 1489 [2012]; People [*2]v Rockefeller, 79 AD3d1527, 1527 [2010], lv denied 16 NY3d 862 [2011]). "Hearsay evidence is admissibleand may be considered, but it cannot alone support a finding of a probation violation" (People v Coupe, 124 AD3d 1141,1142 [2015]; see People v Wiggins,151 AD3d 1859, 1860 [2017], lv denied 30 NY3d 954 [2017]; People vBevilacqua, 91 AD3d 1120, 1120 [2012]).
At the hearing, defendant's probation officer testified that she reviewed with defendant theterms and conditions of his probation and that, by signing an order and conditions of probation,defendant acknowledged his receipt and understanding of the terms and conditions of hisprobation. While much of the remaining evidence, including testimony from the 911 dispatcherwho received the 911 call from the mother after the incident, testimony from the maternalgrandfather as to the mother's statements shortly after the encounter and the mother's recorded911 call, was hearsay, said evidence was properly considered by County Court under the excitedutterance exception to the hearsay rule (see People v Haskins, 121 AD3d 1181, 1183-1184 [2014], lvdenied 24 NY3d 1120 [2015]; People v Auleta, 82 AD3d 1417, 1418-1419 [2011], lvdenied 17 NY3d 813 [2011]; People v Nelson, 266 AD2d 725, 726 [1999], lvdenied 95 NY2d 801 [2000]). To the extent that the responding officer's testimony regardingthe mother's statements two hours after the incident constitutes hearsay and does not fall underthe excited utterance exception, we note that such evidence did not provide the sole basis forCounty Court's violation finding (see People v Coupe, 124 AD3d at 1142; compare People v DeMoney, 55 AD3d953, 954 [2008]). According appropriate deference to County Court's credibilitydeterminations, we find that the record evidence amply supports the finding that defendantviolated the terms of his probation (seePeople v Filipowicz, 111 AD3d 1022, 1022-1023 [2013], lv denied 22 NY3d1156 [2014]; compare People v DeMoney, 55 AD3d at 954).
We find no merit to defendant's further claim that the term of imprisonment imposed uponresentencing is harsh and excessive. Given defendant's criminal history, lack of remorse and thefact that his violation of probation involved the same victim as his underlying conviction, we findno extraordinary circumstances or any abuse of discretion warranting a reduction of theresentence in the interest of justice (seePeople v Washington, 138 AD3d 1246, 1247-1248 [2016]; People v Rockefeller,79 AD3d at 1528). Defendant's remaining contentions have been considered and found to bewithout merit.
Egan Jr., J.P., Devine, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.