People v. Cangialosi

277 A.D.2d 897, 716 N.Y.S.2d 210, 2000 N.Y. App. Div. LEXIS 11544

Opinion

—Judgment unanimously reversed on the law, declaration of delinquency vacated and sentence of probation reinstated. Memorandum: The People did not sustain their burden of proving by a preponderance of the evidence that defendant violated a condition of probation (see, CPL 410.70 [3]). The only material evidence offered was the transcript of prior testimony at the underlying criminal trial.

Although the transcript was admissible at the probation violation hearing (see, CPL 410.70 [3]), it did not qualify as competent evidence under the former testimony exception to the hearsay rule (see generally, Prince, Richardson on Evidence § 8-513 [Farrell 11th ed]), and thus the People failed to meet their burden of proof (see, People v Owens, 258 AD2d 901, lv denied 93 NY2d 975; People v Usher, 80 AD2d 730).

Defendant further contends that the 15-month delay between the filing of the declaration of delinquency and the violation hearing denied him the right to a prompt hearing (see, CPL 410.70 [1]). We disagree. Defendant requested a postponement of the violation hearing until such time as the criminal charges were presented to the Grand Jury and his suppression motions were decided. Defendant also indicated that a further adjournment was needed to enable him to obtain the transcripts of the suppression hearing and trial. Under the circumstances, defendant was not denied his right to a prompt hearing. (Appeal from Judgment of Supreme Court, Monroe County, Mark, J.— Violation of Probation.) Present — Green, J. P., Pine, Wisner, Kehoe and Balio, JJ.