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VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT).

The First Department, reversing Supreme Court and reinstating defendant’s sentence of probation, determined the finding that defendant had violated a condition of probation was improperly based entirely on grand jury minutes, which constituted hearsay:

A finding, by a preponderance of the evidence, that a defendant has violated a condition of probation … may not be based on hearsay evidence alone … . Here, on several occasions during the probation revocation hearing, the court indicated that its determination that defendant had violated probation by traveling outside the jurisdiction without permission, and by failing to lead a law abiding life, was based solely on the grand jury minutes related to his 2012 indictment (which was dismissed for lack of jurisdiction and did not result in a conviction) … . One of these statements, in which the court stated that “the government prevailed by the properly unsealed and complete [g]rand [j]ury minutes,” occurred directly after defense counsel explicitly argued that the court could not base a finding of a violation solely on the grand jury minutes, which constituted hearsay.

Based on this record, regardless of whether there was other evidence in the record that might have satisfied the requirement for “a residuum of competent legal evidence” … , we are compelled to find that the court’s determination was based on hearsay alone and therefore cannot stand. People v Hubel, 2018 NY Slip Op 01154, First Dept 2-20-18

CRIMINAL LAW (VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT))/HEARSAY (CRIMINAL LAW, VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT))/GRAND JURY MINUTES (HEARSAY, VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT))/PROBATION (VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT))

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JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, THERE WAS EVIDENCE... ALLEGATIONS IN COMPLAINT AND AFFIDAVIT SUBMITTED IN RESPONSE TO A MOTION TO...