| People v Deming |
| 2019 NY Slip Op 03107 [171 AD3d 1400] |
| April 25, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Deming, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Mary Pat Donnelly, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Aarons, J. Appeal from a judgment of the County Court of Rensselaer County (Cholakis, J.),rendered January 31, 2017, which revoked defendant's probation and imposed a sentence ofincarceration.
In 2015, defendant pleaded guilty to criminal contempt in the second degree, waived his rightto appeal and was sentenced to three years of probation, and a stay-away order of protection wasissued in favor of the domestic violence victim. In November 2016, a violation of probation(hereinafter VOP) petition was filed charging defendant with violating several of the terms andconditions of his probation, and a declaration of delinquency was filed. After a hearing(see CPL 410.70 [1]), County Court determined that defendant had violated theconditions of his probation by failing to complete a batterer's intervention program andcontinuing to abuse marihuana while failing to obtain substance abuse treatment. Defendant wassentenced to one year in jail, and this appeal ensued.
We affirm. Contrary to defendant's contention, the People proved by a preponderance of theevidence that he violated numerous conditions of his probation (see CPL 410.70 [3]; People v Simpson, 155 AD3d1246, 1246-1247 [2017]). One of the domestic violence conditions (No. 10) required thatdefendant "[p]articipate in and successfully complete a domestic violence/batterer'sintervention/men's accountability program as directed by [his p]robation [o]fficer." Defendantargues that the People did not adequately prove that he violated this condition because the VOPpetition did not specify a required completion date for this program. Initially, defendant did notchallenge the allegation in the VOP petition on this ground at either of the appearances or at thehearing and, thus, any challenge to the petition is unpreserved (see CPL 470.05 [2]; People v McMillan, 166 AD3d1231, 1232 [2018]).
Moreover, defendant's challenge to the sufficiency of the proof lacks merit. At the hearing,defendant's probation officer testified that he had explained to defendant and reviewed with himthe terms and conditions of probation, including the requirement to attend a domestic violence orsimilar batterer's program. The probation officer testified that, as of the time that the VOPpetition was filed, defendant had only paid an intake fee for a batterer's intervention program andhe did not thereafter engage in or complete that program, although his probation officerrepeatedly directed him to do so. Given that defendant was advised at the outset of the terms andconditions of probation and had been on probation for approximately 16 months before the VOPpetition was filed, the record supports the conclusion that he was provided ample notice of whatwas required and afforded a more than reasonable opportunity to satisfy this condition. Further,his belated, unsuccessful efforts to enroll after the VOP petition was filed did not cure hisprotracted and willful failure to comply with this condition.
Likewise, defendant's probation officer recounted that he performed drug tests on defendant,that defendant tested positive for marihuana on three occasions while on probation and that, eachtime, he admitted smoking marihuana in violation of one of the alcohol/substance abuseconditions (No. 2). Notably, hearsay evidence did not serve as the sole support for CountyCourt's finding that defendant had violated probation, as the probation officer testified topersonally performing the drug tests and defendant's statements to the probation officer wereproperly admitted as admissions against his interest (see People v Finch, 160 AD3d 1212, 1213-1214 [2018]; Peoplev Simpson, 155 AD3d at 1247; People v Hare, 124 AD3d 1148, 1148 [2015], lv denied 26NY3d 929 [2015]).[FN*]Although defendant reportedly made an appointment for a substance abuse evaluation after theinitial appearance on the VOP petition, his probation officer testified that he had not completedsuch evaluation or treatment during the extended period of time that he was on probation.Accordingly, affording deference to County Court's determination to credit the officer'stestimony, the court's finding that defendant violated the conditions of probation was supportedby a preponderance of the evidence (see People v Simpson, 155 AD3d at 1247-1248; People v Turner, 136 AD3d 1111,1112 [2016], lv denied 27 NY3d 1140 [2016]; People v Eggsware, 125 AD3d 1057, 1057 [2015], lvdenied 25 NY3d 1162 [2015]). Defendant's remaining contentions have been considered andlack merit.
Lynch, J.P., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant also argues thatCounty Court erred in permitting the probation officer to testify regarding a November 6, 2016domestic incident report against defendant that was relevant to the charge in the VOP petitionthat defendant had failed to report police contact within 24 hours, in that it was hearsay.However, the court did not rely on that report or make any finding on that allegation.