| People v McMillan |
| 2018 NY Slip Op 07791 [166 AD3d 1231] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jimir S. McMillan, Appellant. |
Kelly M. Monroe, Albany, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri ofcounsel), for respondent.
Pritzker, J. Appeal from a judgment of the County Court of Broome County(Northrup Jr., J.), rendered March 4, 2016, which revoked defendant's probation andimposed a sentence of imprisonment.
Defendant pleaded guilty to attempted robbery in the second degree and wassentenced to five years of probation. While on probation, defendant was arrested forcriminal mischief in the fourth degree and another crime and, months later, for twoadditional crimes. Defendant was thereafter charged with violating the conditions of hisprobation based upon the new criminal charges, as well as his failure to participate in adrug and alcohol evaluation required as a condition of his probation. On December 2,2014, County Court (Smith, J.) accepted defendant's admission to having violated theconditions of his probation by committing the crime of criminal mischief in the fourthdegree while on probation, a crime to which he had pleaded guilty and been sentenced totime served. The court adjourned sentencing and released him so that he could obtainsubstance abuse treatment. Over the course of the next 15 months, repeated efforts weremade to provide defendant with an opportunity to address his substance abuse and mentalhealth problems in addition to other medical and family issues. On March 4, 2016,County Court (Northrup Jr., J.) concluded that defendant had not completed substanceabuse treatment since his admission to violating probation, revoked his probation andsentenced him to a prison term of three years with two years of postrelease supervision.Defendant appeals.
We affirm. Defendant argues that County Court failed to afford him a hearingpursuant to CPL 410.70 (1) in connection with the probation violation petition, requiringthat the revocation of his probation be reversed. A defendant is entitled to a summaryrevocation hearing if he or she contests a violation of probation (see CPL 410.70[1]; People v Williams, 164AD3d 845, 845 [2018]; People v Finch, 160 AD3d 1212, 1213 [2018]; People v Montenegro, 153AD3d 553, 554 [2017]). Here, however, defendant freely admitted violating theconditions of his [*2]probation and waived his right to ahearing, satisfying the statutory requirements of CPL 410.70 (1) (see People v McDevitt, 97AD3d 1039, 1040 [2012], lv denied 20 NY3d 987 [2012]; cf. People vMontenegro, 153 AD3d at 554). To that end, the court advised defendant that if headmitted the allegations in the violation petition, he was giving up his right to a hearing,including the right to call witnesses, to testify and to present defenses, and defendantindicated that he understood. Defendant assured the court that he had sufficient time toreview the charges with counsel and wished to admit that he violated probation, which hethereafter did. Indeed, defendant does not deny that his admission and waiver of ahearing were knowing, voluntary and intelligent (compare People v Aubain, 152 AD3d 868, 869-870 [2017];People v Bryant, 262 AD2d 791, 791 [1999]) but, rather, argues that he wasentitled to a hearing prior to the later revocation of his probation and sentencing. Thisobjection is unpreserved as it was not raised at any point during the sentencingproceedings, although there was ample opportunity to do so (see People v Williams, 27NY3d 212, 214 [2016]; cf. People v Montenegro, 153 AD3d at 554). In anyevent, he is incorrect. Sentencing was based on defendant's admission and hearingwaiver, obviating the need for a hearing on the violation petition. Further, he wasaccorded an opportunity to be heard before sentencing with regard to his failure tocomplete substance abuse treatment pending sentencing. Under these circumstances,CPL 410.70 did not require a hearing.
Defendant's further contention that County Court modified or supplemented theconditions of his probation following his admission, requiring a hearing before hisprobation was revoked, is likewise not preserved. In any event, it lacks merit, assentencing was not based upon a finding of new, postplea violations of probation. Whilethe court took into consideration, in revoking probation and imposing sentence, the15-month history since defendant's admission, including multiple addenda filed to theviolation petition, the court did not make new findings that defendant had violatedadditional conditions of probation.
Garry, P.J., Devine, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.