DEFENDANT WAS NOT PROPERLY NOTIFIED OF THE ALLEGED VIOLATIONS OF PROBATION AND THE FINDING THAT DEFENDANT VIOLATED A CONDITION WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was not properly notified of alleged violations of probation and the proof did not support a finding that defendant violated a condition of probation:

Where a violation of probation is alleged to have occurred, a written statement must be filed with the court and provided to defendant “setting forth the condition or conditions of the sentence violated and a reasonable description of the time, place and manner in which the violation occurred” (CPL 410.70 [2] …). Here, the details of the alleged violations in the uniform court report only included the   that defendant violated condition 2, which required her to obey all state and federal laws, by engaging in conduct that led to her September 2015 and March 2016 arrests. Although a different section of the uniform court report summarizing defendant’s probation supervision referenced other incidents that County Court made findings with respect thereto, the uniform court report only alleged that defendant violated condition 2 of the terms of her probation (see CPL 410.70 [2]). Moreover, defendant’s probation officer acknowledged in her testimony that defendant was not charged in the uniform court report with violating conditions 8, 12 and 16. Notwithstanding the testimony that was allowed at the hearing with regard to conditions 8, 12 and 16, defendant was not provided with a written statement informing her that she was also being charged with violating these conditions of her probation. Accordingly, County Court’s finding that defendant violated these terms of her probation was improper (see CPL 410.70 [2]…). …

Condition 2 of the terms of defendant’s probation required her to obey all federal, state and local laws and notify her probation officer immediately if questioned or arrested by a law enforcement agency or if convicted of a new offense. In support of its allegation that defendant violated this condition, the People adduced the testimony of defendant’s probation officer who testified, in relevant part, that defendant notified her of both the September 2015 and March 2016 arrests and charges. Beyond the probation officer’s testimony that defendant had been arrested on two occasions, no additional evidence or proof was offered as to the underlying acts. Accordingly, County Court’s finding that defendant violated condition 2 of her probation was not supported by a preponderance of the evidence … . People v Johnson, 2019 NY Slip Op 05018, Third Dept 6-20-19

 

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