People v. Johnson

248 A.D.2d 403, 669 N.Y.S.2d 836, 1998 N.Y. App. Div. LEXIS 2043

Opinion

—Appeal by the defendant from an amended judgment of the County Court, Nassau County (Ain, J.), rendered March 27, 1997, revoking a sentence of probation previously imposed by the Supreme Court, New York County (Newton, J.), upon a finding that he had violated a condition thereof, after a hearing, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a weapon in the third degree.

Ordered that the amended judgment is modified, as a matter of discretion in the interest of justice, by (1) vacating the sentence imposed thereon and the declaration of delinquency, and (2) reinstating the previous sentence of probation without any period of interruption; as so modified, the amended judgment is affirmed.

While the testimony at the hearing established by a preponderance of the evidence that the defendant violated the terms of his probation (see, CPL 410.70 [3]), revocation of probation was not warranted under the circumstances of this case (see, CPL 410.70 [5]).

Thompson, J. P., Pizzuto, Joy and Altman, JJ., concur.