violation of probation hearing in New York

2018Evidence that is unlawfully seized cannot be used as a basis for revoking a probationary sentence ( see People v Robinson , 128 AD3d 1464, 1465 [2015]) and, as we have concluded, the search of defendant's apartment was unlawful.

2018Evidence that is unlawfully seized cannot be used as a basis for revoking a probationary sentence (see People v Robinson, 128 AD3d 1464, 1465 [2015]) and, as we have concluded, the search of defendant's apartment was unlawful.

2026As an initial matter, defendant failed to preserve for our review his contention that County Court deprived him of the presumption of innocence by allowing him to wear jail-issued clothing when he appeared at the violation of probation hearing ( see People v Douglas , 94 NY2d 807, 808 [1999]; People v Bailey , 181 AD3d 1243 , 1245 [4th Dept 2020]; People v Irizarry , 160 AD3d 1384 , 1385 [4th Dept 2018], lv denied 31 NY3d 1149 [2018]).

2026We reject defendant's contention that the People failed to establish by a preponderance of the evidence that he violated the terms and conditions of his probation ( see People v Robinson , 147 AD3d 1351 , 1351 [4th Dept 2017], lv denied 29 NY3d 1085 [2017]; People v Ortiz , 94 AD3d 1436 , 1436 [4th Dept 2012], lv denied 19 NY3d 999 [2012]; People v Wells , 69 AD3d 1228, 1229 [3d Dept 2010]).

2026Rather, "because interim probation is imposed prior to sentencing, the presentence procedures set forth in CPL 400.10 apply" ( People v Boje , 194 AD3d 1367, 1368 [4th Dept 2021], lv denied 37 NY3d 970 [2021]; see Rollins , 50 AD3d at 1536 ), notwithstanding the fact that "[the c]ourt and the parties . . . improperly characterized the procedure to revoke the interim probation supervision as a violation of probation hearing" ( Rollins , 50 AD3d at 1535-1536 ).

2026Rather, "because interim probation is imposed prior to sentencing, the presentence procedures set forth in CPL 400.10 apply" ( People v Boje , 194 AD3d 1367, 1368 [4th Dept 2021], lv denied 37 NY3d 970 [2021]; see Rollins , 50 AD3d at 1536 ), notwithstanding the fact that "[the c]ourt and the parties . . . improperly characterized the procedure to revoke the interim probation supervision as a violation of probation hearing" ( Rollins , 50 AD3d at 1535-1536 ).

2026Rather, "because interim probation is imposed prior to sentencing, the presentence procedures set forth in CPL 400.10 apply" ( People v Boje , 194 AD3d 1367, 1368 [4th Dept 2021], lv denied 37 NY3d 970 [2021]; see Rollins , 50 AD3d at 1536 ), notwithstanding the fact that "[the c]ourt and the parties . . . improperly characterized the procedure to revoke the interim probation supervision as a violation of probation hearing" ( Rollins , 50 AD3d at 1535-1536 ).

2023People v Feliciano , 54 AD3d 1131, 1132 [3d Dept 2008] ["hearsay evidence is admissible in a violation of probation hearing"]; People v Wheeler , 46 AD3d 1082, 1082 [3d Dept 2007] ["under the Sex Offender Registration Act, the court can consider reliable hearsay"]).

2023People v Feliciano , 54 AD3d 1131, 1132 [3d Dept 2008] ["hearsay evidence is admissible in a violation of probation hearing"]; People v Wheeler , 46 AD3d 1082, 1082 [3d Dept 2007] ["under the Sex Offender Registration Act, the court can consider reliable hearsay"]).

2022Given that the victim was not called as a witness and there was no suggestion that the Public Defender was simultaneously representing her in another matter, [FN2] the record does not support a finding of an actual conflict of interest ( see People v Sanchez , 21 NY3d 216, 223 [2013]; People v McDonald , 68 NY2d 1, 8 [1986]).

2022Given that the victim was not called as a witness and there was no suggestion that the Public Defender was simultaneously representing her in another matter, [FN2] the record does not support a finding of an actual conflict of interest ( see People v Sanchez , 21 NY3d 216, 223 [2013]; People v McDonald , 68 NY2d 1, 8 [1986]).

2020It is well settled that a "violation of probation proceeding is summary in nature and a sentence of probation may be revoked if the defendant has been afforded an opportunity to be heard" ( People v Travis , 156 AD3d 1399, 1399 [4th Dept 2017], lv denied 30 NY3d 1120 [2018] [internal quotation marks omitted]).

2017In order “[t]o prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics, or the scope of possible cross-examination, weighed long after the [hearing], does not suffice” (People v Benevento, 91 NY2d 708, 713 [1998] [internal quotation marks omitted]; see People v Flores, 84 NY2d 184, 187 [1994]).

2017In order “[t]o prevail on a claim of ineffective assistance, defendants must demonstrate that they were deprived of a fair trial by less than meaningful representation; a simple disagreement with strategies, tactics, or the scope of possible cross-examination, weighed long after the [hearing], does not suffice” (People v Benevento, 91 NY2d 708, 713 [1998] [internal quotation marks omitted]; see People v Flores, 84 NY2d 184, 187 [1994]).

2017The defendant’s contention that the Supreme Court’s sentence impermissibly penalized him for exercising his right to a violation of probation hearing is unpreserved for appellate review since he did not set forth the issue on the record at the time of sentencing (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Busano, 141 AD3d 538, 542 [2016]).

2017In any event, the fact that the sentence imposed after the hearing was more severe than the sentence offered during plea negotiations does not, standing alone, establish that the defendant was punished for exercising his right to a hearing (see People v Pena, 50 NY2d 400, 412 [1980]; People v Sahadeo, 140 AD3d 1093, 1094 [2016]; People v Arnold, 139 AD3d 748, 750 [2016]).

2017In any event, the fact that the sentence imposed after the hearing was more severe than the sentence offered during plea negotiations does not, standing alone, establish that the defendant was punished for exercising his right to a hearing (see People v Pena, 50 NY2d 400, 412 [1980]; People v Sahadeo, 140 AD3d 1093, 1094 [2016]; People v Arnold, 139 AD3d 748, 750 [2016]).

2017In any event, the fact that the sentence imposed after the hearing was more severe than the sentence offered during plea negotiations does not, standing alone, establish that the defendant was punished for exercising his right to a hearing (see People v Pena, 50 NY2d 400, 412 [1980]; People v Sahadeo, 140 AD3d 1093, 1094 [2016]; People v Arnold, 139 AD3d 748, 750 [2016]).

2017The defendant’s contention that the Supreme Court’s sentence impermissibly penalized him for exercising his right to a violation of probation hearing is unpreserved for appellate review since he did not set forth the issue on the record at the time of sentencing (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Busano, 141 AD3d 538, 542 [2016]).

2012In People v Thomas ( 121 AD2d 73, 76 [4th Dept 1986]), the Court found that, while Alco-Sensor test results are inadmissible at trial for the purpose of establishing intoxication, such results are admissible at suppression hearings, because “breath screening devices have won acceptance as being sufficiently reliable to establish probable cause for an arrest.” Similarly, in People v Jones ( 10 Misc 3d 413, 416 [Dutchess County Ct 2005], affd 50 AD3d 1058 [2d Dept 2008]), the court stated that the Alco-Sensor is “sufficiently reliable for use in determining the presence of alcohol,” and found th