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Violation of Probation Petition May Be Based Upon Hearsay

The Fourth Department determined that a “violation of probation” petition need not include non-hearsay allegation establishing every element of the violation charged:

…[A]lthough Family Court Act § 360.2 (2) specifically requires that VOP petitions in juvenile delinquency proceedings contain “[n]on[]hearsay allegations . . . establish[ing], if true, every violation charged,” there is no corresponding requirement in CPL article 410.  At most, CPL 410.70 (2) requires that the court “file or cause to be filed . . . a statement 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.”There is no requirement that the statement contain nonhearsay allegations.

In any event, we agree with the People that, were there such a requirement in the CPL, the reasoning of Matter of Markim Q. (7 NY3d 405, 410-411) would apply such that the lack of nonhearsay allegations in the VOP petition would not constitute a jurisdictional defect. “A VOP petition, [unlike an original accusatory instrument], is not the foundation of the court’s jurisdiction. It does not commence a new proceeding, but is simply a new step in an existing one” (id. at 410). People v Julius, 175, KA 11-01384, 4th Dept. 3-15-13

 

 

 

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