PEOPLE v. BRANDON (2002)

 Contrary to the contention of defendant, the People proved, by a preponderance of the evidence (see CPL 410.70[3] ), that defendant willfully violated the terms and conditions of his probation.   According to conditions 12 and 13 of defendant's probation, defendant was required to “[p]articipate in sex offender treatment * * * on an ongoing basis” and “[c]omply with all rules and regulations of the sex offender group treatment program.”   Participants in that treatment program were, among other things, required to buy a workbook, to attend group counseling sessions and to keep a journal.   Attendance at a group counseling session without the workbook would be treated as an absence.   Here, defendant failed to buy a workbook until after his participation in the treatment program had been terminated, failed to attend two group counseling sessions, which he attributed to his financial inability to buy the workbook, and failed to keep a journal.

 The Court of Appeals has determined that “depriving probationers of conditional freedom based simply on their indigence would be an invidious denial to one class of defendants of a substantial benefit available to another” (People v. Amorosi, 96 N.Y.2d 180, 184, 726 N.Y.S.2d 339, 750 N.E.2d 41).   Thus, the failure of defendant to buy the workbook cannot serve as a basis for determining that he violated his probation unless the People establish defendant's financial ability to buy the workbook (see generally id.).   No such proof was offered.   The requirement that defendant keep a journal, however, had no financial component and thus “the burden of proving a justifiable excuse for [that] probation violation is on [respondent]” (People v. Costanza, 281 A.D.2d 120, 123, 725 N.Y.S.2d 686, lv. denied 96 N.Y.2d 827, 729 N.Y.S.2d 447, 754 N.E.2d 207).   Defendant provided no excuse for his failure to keep a journal, and County Court therefore properly revoked his probation.   The sentence imposed following the revocation of probation is neither unduly harsh nor severe.

It is hereby ORDERED that the adjudication so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: