Opinion
01-29-2015
The PEOPLE of the State of New York, Respondent, v. Michael B. HARE, Appellant.
Paul J. Connolly, Delmar, for appellant. G. Scott Walling, Special Prosecutor, Schenectady, for respondent.
Paul J. Connolly, Delmar, for appellant.
G. Scott Walling, Special Prosecutor, Schenectady, for respondent.
Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and CLARK, JJ.
Opinion
CLARK, J.Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered May 6, 2013, which revoked defendant's probation and imposed a sentence of imprisonment.
In September 2012, defendant pleaded guilty to assault in the second degree as the result of an incident wherein he injured a State Trooper who was attempting to arrest him. County Court imposed the agreed-upon sentence of time served to be followed by five years of probation. Defendant was almost immediately charged with violating the conditions of his probation by, among other things, calling a former girlfriend and her mother on multiple occasions and ignoring the direction of his probation officer not to do so. Defendant contested the allegations and, following a hearing, County Court determined that defendant had violated the terms of his probation. Defendant was thereafter resentenced to two years in prison, to be followed by three years of postrelease supervision, and he now appeals.
The People bear the burden of proving a probation violation by a preponderance of the evidence (see CPL 410.70[3] ; People v. Lapham, 117 A.D.3d 1341, 1341, 987 N.Y.S.2d 117 [2014], lv. denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ; People v. Filipowicz, 111 A.D.3d 1022, 1022, 974 N.Y.S.2d 653 [2013], lv. denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ). As defendant correctly notes, hearsay evidence will not support the finding of a probation violation by itself (see People v. Filipowicz, 111 A.D.3d at 1022–1023, 974 N.Y.S.2d 653 ). Inasmuch as defendant's probation officer testified that defendant had admitted to making several of the offending calls despite having been warned not to do so, however, nonhearsay evidence supports the finding of a violation (see People v. Holland, 95 A.D.3d 1504, 1505, 943 N.Y.S.2d 806 [2012], lv. denied 19 N.Y.3d 974, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012] ; People v. Spady, 25 A.D.3d 881, 882, 806 N.Y.S.2d 807 [2006] ).
We also reject defendant's contention that he received ineffective assistance of counsel. “A contention of ineffective assistance of trial counsel requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics” (People v. Rivera, 71 N.Y.2d 705, 708–709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] [citations omitted]; see People v. Barboni, 21 N.Y.3d 393, 405–406, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2013] ). Defendant specifically claims that counsel was ineffective for inadvertently eliciting on cross-examination the fact that defendant had admitted making the forbidden telephone calls to the probation officer. The record reflects that the cross-examination was part of a legitimate trial strategy of calling the basis for the officer's knowledge of the violations into question, however, and it was not worded or designed to elicit damaging testimony (see People v. McCloud, 121 A.D.3d 1286, 1292, 995 N.Y.S.2d 269 [2014] ; People v. Yelle, 303 A.D.2d 1043, 1044, 756 N.Y.S.2d 692 [2003], lv. denied 100 N.Y.2d 626, 767 N.Y.S.2d 410, 799 N.E.2d 633 [2003] ). When viewed in totality, we have no difficulty concluding that defendant received meaningful representation (see People v. Wingo, 103 A.D.3d 1036, 1037, 962 N.Y.S.2d 422 [2013], lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ; People v. Brickle, 244 A.D.2d 700, 702, 664 N.Y.S.2d 652 [1997], lv. denied 91 N.Y.2d 889, 669 N.Y.S.2d 3, 691 N.E.2d 1029 [1998] ).
Defendant additionally argues that County Court failed to provide an adequate statement of its reasoning in revoking his probation (see Gagnon v. Scarpelli, 411 U.S. 778, 785–786, 93 S.Ct. 1756 [1973] ; People v. McCloud, 205 A.D.2d 1024, 1025, 614 N.Y.S.2d 72 [1994], lv. denied 86 N.Y.2d 738, 631 N.Y.S.2d 619, 655 N.E.2d 716 [1995] ). Defendant failed to preserve that argument by objecting to the sufficiency of County Court's findings, however, and we perceive no reason to take corrective action in the interest of justice (see CPL 470.05[2] ; see e.g. People v. Junior, 119 A.D.3d 1228, 1231, 990 N.Y.S.2d 689 [2014], lv. denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014] ). Defendant's remaining contentions, including that the sentence imposed was harsh and excessive, have been considered and found to be lacking in merit.
ORDERED that the judgment is affirmed.
McCARTHY, J.P., GARRY, LYNCH and DEVINE, JJ., concur.