People v. Mitchell

206 A.D.2d 440, 616 N.Y.S.2d 188

Opinion

Appeal by the defendant from an amended judgment of the Supreme Court, Queens County (Joy, J.), rendered June 3, 1991, as amended March 25, 1992, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, after a hearing, and imposing a sentence of imprisonment upon his previous conviction of attempted criminal sale of a controlled substance in the third degree. By decision and order dated February 7, 1994, this Court remitted the matter to the Supreme Court, Queens County, to hear and report whether the Department of Probation had in its possession any prior statements of the hearing witnesses regarding the events to which they testified at the hearing on the defendant’s violation of probation, and held the appeal in abeyance in the interim (People v Mitchell, 201 AD2d 507). The Supreme Court, Queens County (Griffin, J.), has now filed its report.

Ordered that the amended judgment is affirmed.

The Supreme Court’s thorough inquiry and investigation into the matter supports its determination that the Department of Probation did not possess any prior statements of the hearing witnesses at the time of the violation hearing, nor does it presently possess any such statements. Accordingly, the defendant’s claim that the Department of Probation deprived him of due process by denying him access to the purported statements is without merit.

The defendant’s challenge to the amended sentence imposed on June 3, 1991, has been rendered academic because it was further amended on March 25, 1992. Moreover, the sentence ultimately imposed is neither unduly harsh nor excessive (see, People v Suitte, 90 AD2d 80). Bracken, J. P., Sullivan, Krausman and Goldstein, JJ., concur.