THE PEOPLE OF THE STATE OF NEW YORK v. NOEL RUSSELL

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Supreme Court, Appellate Division, Third Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NOEL RUSSELL, Appellant.

105084

Decided: May 1, 2014

Before:  Lahtinen, J.P., Stein, Garry and Rose, JJ. Paul J. Connolly, Delmar, for appellant. James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.

MEMORANDUM AND ORDER

Calendar Date:  March 27, 2014

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered May 9, 2012, which revoked defendant's probation and imposed a sentence of imprisonment.

In 2005, pursuant to a plea agreement, defendant waived indictment and pleaded guilty to a superior court information charging him with rape in the third degree.   In accord with the plea agreement, defendant was sentenced to 10 years of probation.   In 2012, defendant was charged with violating the terms of his probation based upon his conviction after trial of various predatory sexual offenses.   Taking judicial notice of the recent convictions, County Court revoked defendant's probation on that basis and sentenced him to a prison term of 1 to 3 years.   Defendant appeals.

The judgment of conviction with respect to the underlying crimes, upon which defendant's violation of probation was based, was recently reversed by this Court (People v. Russell, _ AD3d _, 983 N.Y.S.2d 105 [2014] ).   Accordingly, as the finding of violation was based solely upon the certificate of the convictions, reversal of this probation violation is required (see People v. Reed, 186 A.D.2d 159, 160 [1992];  People v. Bradford, 162 A.D.2d 457, 458 [1990];  see also People v. Fearnot, 200 A.D.2d 583, 584 [1994] ).

Lahtinen, J.P., Stein and Rose, JJ., concur.

ORDERED that the judgment is reversed, on the law, and violation of probation petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court

Garry, J.

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