City Court of Hudson, February 22, 2018

Dominic J. Cornelius, Public Defender, for defendant.

Paul Czajka, District Attorney (Joyce Crawford of counsel), for plaintiff.

On June 1, 2017, the defendant pleaded guilty to a single charge of violation of Penal Law § 120.00, assault in the third degree. On July 13, 2017, the defendant was placed on one year interim supervision (unless terminated earlier by the court). Among the conditions of interim supervision was that the defendant would "[w]ithin twenty-four (24) hours notify the Probation Officer of any arrest or any involvement with a law enforcement agency." The terms of interim supervision also required that, "[a]t the discretion of the Probation Department, you [the defendant] will participate in and successfully complete any group or program which you are referred."

On August 8, 2017, this court received notice from the Columbia County Department of Probation alleging that the defendant failed to abide by the terms and conditions of his interim supervision in that he failed to advise Columbia County Department of Probation that he was arrested in Menands, New York and charged with two felonies and one misdemeanor. The correspondence from the Columbia County Department of Probation also provided a supervision summary which stated: "The defendant has met with your writer once since being sentenced. He has agreed to make appointments with Twin County Recovery Services and claimed he has been working at a local restaurant. The defendant is residing with his mother on Warren St." Based upon these allegations, the Columbia County Department of Probation recommended that the defendant be returned to court for further proceedings.

On January 18, 2018, a hearing was held to determine if in fact the defendant had violated the terms and conditions of his interim supervision. At the hearing, the People called [*2]one witness, namely the defendant's supervising probation officer. In his testimony, the probation officer stated that the defendant was arrested twice during the defendant's interim supervision and that the defendant was discharged unsuccessfully from treatment at Twin County Recovery Services. The witness further testified that he became aware of the new alleged criminal charges by the arresting agency and via the Department of Criminal Justice Services, and direct communication with the counselor at Twin County Recovery Services regarding the defendant's{**59 Misc 3d at 523} alleged unsuccessful discharge from the program which he was required to attend.

The defendant chose not to present any proof in refuting the alleged violations.

After testimony at the hearing, defense counsel moved to dismiss the alleged violation of interim supervision claiming that the People failed to meet their burden of proof at the hearing in that the People only provided hearsay evidence of the defendant's alleged violations of interim supervision and such is insufficient to meet the People's burden of proof. The court permitted counsel to submit papers on the defendant's motion to dismiss. Thereafter, the defense counsel submitted an affirmation in support of the motion to dismiss to which the People responded with an affirmation in opposition. Thereafter, defense counsel filed a reply affirmation.

In support of its motion, the defense cites People v Paris (145 AD3d 1530 [4th Dept 2016]), which in turn cites People v Pettway (286 AD2d 865 [4th Dept 2001], lv denied 97 NY2d 686 [2001]). Both these cases discuss the standard of proof in a violation of probation proceeding.

The People, in opposition to defendant's motion, bring to the court's attention that the defendant is not on probation, but rather on interim supervision. The People go on to say that the cases cited by defense counsel refer to probation, not to interim supervision. The People argue that since the defendant has not been sentenced to probation, CPL 410.70 does not apply, but rather CPL 400.10 is applicable, citing People v Outley (80 NY2d 702, 712 [1993]). The People further propounded that the hearing was "of sufficient depth" to enable the court to determine that the defendant violated the terms and conditions of interim supervision, citing People v Rollins (50 AD3d 1535, 1536 [4th Dept 2008]), as cited by People v Waite (119 AD3d 1086, 1087 [3d Dept 2014]).

Defense replied to the People's opposition by asserting that the Rollins decision, a Fourth Department case, cites People v Trathen (2 AD3d 1065 [3d Dept 2003]) and therefore should not be controlling in the Third Department; rather Trathen, being a Third Department case, should control. Defense further quotes Trathen as stating that a violation of interim supervision is "akin to a probation revocation hearing" and that CPL 410.70 is controlling. (Id. at 1065.) In conclusion, the defense asks the court to follow the Third Department case (i.e., Trathen, and not follow the Fourth Department case, Rollins).{**59 Misc 3d at 524}

The court finds defendant's argument unconvincing that Trathen is controlling. Trathen, a 2003 case, states that, "[u]nlike a criminal action, a hearing of this type is akin to a probation revocation hearing, which is a summary proceeding where the standard of review is 'a preponderance of the evidence.' " (Id. at 1065.) Clearly, the Court in Trathen was analogizing a violation of interim supervision hearing with a violation of probation hearing only to the extent as to the applicable burden of proof (i.e., by the preponderance of the evidence). The court finds that it is an unreasonable leap to infer that the Trathen Court analogy extends to the type of evidence which is admissible.

The Third Department in 2014 resolved any question as to which section of the CPL applies to a violation of interim supervision hearing. In Waite, the Third Department held that CPL 410.70 did not apply when there has been no sentence of probation. Citing [*3]Rollins, the Third Department went further to state that since interim probation supervision is imposed prior to sentencing, the presentence procedures set forth in CPL 400.10 apply.

The Fourth Department in Rollins stated,

"We thus conclude that the presentence procedures set forth in CPL 400.10 apply herein, and we further conclude that the summary hearing conducted by the court was sufficient pursuant to CPL 400.10 (3) to enable the court to 'assure itself that the information upon which it bas[ed] the sentence [was] reliable and accurate' (People v Outley, 80 NY2d 702, 712 [1993])." (Rollins at 1536.)

In light of the foregoing, it is the decision of this court that the People have met their burden of proof in that the court finds by the preponderance of the evidence that the testimony of the probation officer was reliable and accurate and that the defendant did violate the terms and conditions of his interim supervision.

Defendant and counsel are required to appear on March 8, 2018, for sentencing.