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PROOF OF A PROBATION VIOLATION SUBMITTED AFTER THE CLOSE OF EVIDENCE SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department determined County Court should not have held defendant violated the probation condition prohibiting him from committing a new  crime because the evidence of the new crime was not presented to the court until after the close of evidence:

… [T]he defendant correctly contends that the County Court erred in finding that he violated the condition of his probation prohibiting him from committing any additional crime, offense, or violation based solely on his arrest and indictment for attempted murder. While the court would have been permitted to take judicial notice of the defendant’s subsequent indictment for attempted murder … , that evidence was presented after the close of evidence at the revocation of probation hearing. The defendant had no opportunity to be heard regarding the indictment and related documents relied upon by the court. Accordingly, the court should not have found that the defendant violated the condition of his probation based upon the commission of a new crime … . People v Herring, 2019 NY Slip Op 09287, Second Dept 12-24-19

 

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