PEOPLE v. HUBEL (2018)

Judgment of resentence, Supreme Court, New York County (James M. Burke, J.), rendered September 8, 2016, convicting defendant of violation of probation, revoking a prior sentence of 60 days and five years' probation imposed on June 7, 2011, and resentencing defendant to a term of 21/313 to 7 years, unanimously reversed, on the law, the judgment vacated, and defendant's sentence of probation reinstated.  Appeal from order, same court and Justice, entered on or about June 14, 2017, which denied defendant's CPL 440.10 motion (denominated a CPL 440.20 motion) alleging ineffective assistance of counsel at sentencing, unanimously dismissed, as academic.

A finding, by a preponderance of the evidence, that a defendant has violated a condition of probation (see CPL 410.70[3] ) may not be based on hearsay evidence alone (see People v. Pettway, 286 A.D.2d 865, 730 N.Y.S.2d 597 [4th Dept. 2001], lv denied 97 N.Y.2d 686, 738 N.Y.S.2d 302, 764 N.E.2d 406 [2001] ).  Here, on several occasions during the probation revocation hearing, the court indicated that its determination that defendant had violated probation by traveling outside the jurisdiction without permission, and by failing to lead a law abiding life, was based solely on the grand jury minutes related to his 2012 indictment (which was dismissed for lack of jurisdiction and did not result in a conviction).¹  One of these statements, in which the court stated that “the government prevailed by the properly unsealed and complete [g]rand [j]ury minutes,” occurred directly after defense counsel explicitly argued that the court could not base a finding of a violation solely on the grand jury minutes, which constituted hearsay.

Based on this record, regardless of whether there was other evidence in the record that might have satisfied the requirement for “a residuum of competent legal evidence” (People v. Machia, 96 A.D.2d 1113, 1114, 467 N.Y.S.2d 708 [3d Dept. 1983] ), we are compelled to find that the court's determination was based on hearsay alone and therefore cannot stand.

FOOTNOTES

1.   The Court made no mention of and there was no discussion of defendant's failure to make restitution, which also was a condition of his probation.