People v Russell

People v Russell 2014 NY Slip Op 02979 Decided on May 1, 2014 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 1, 2014
105084

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

NOEL RUSSELL, Appellant.

Calendar Date: March 27, 2014
Before: Lahtinen, J.P., Stein, Garry and Rose, JJ.


Paul J. Connolly, Delmar, for appellant.
James R. Farrell, District Attorney, Monticello (Bonnie
M. Mitzner of counsel), for respondent.

MEMORANDUM AND ORDER


Garry, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered May 9, 2012, which revoked defendant's probation and imposed a sentence of imprisonment.

In 2005, pursuant to a plea agreement, defendant waived indictment and pleaded guilty to a superior court information charging him with rape in the third degree. In accord with the plea agreement, defendant was sentenced to 10 years of probation. In 2012, defendant was charged with violating the terms of his probation based upon his conviction after trial of various predatory sexual offenses. Taking judicial notice of the recent convictions, County Court revoked defendant's probation on that basis and sentenced him to a prison term of 1 to 3 years. Defendant appeals.

The judgment of conviction with respect to the underlying crimes, upon which defendant's violation of probation was based, was recently reversed by this Court (People v Russell, ___ AD3d ___, 983 NYS2d 105 [2014]). Accordingly, as the finding of violation was based solely upon the certificate of the convictions, reversal of this probation violation is required (see People v Reed, 186 AD2d 159, 160 [1992]; People v Bradford, 162 AD2d 457, 458 [1990]; see also People v Fearnot, 200 AD2d 583, 584 [1994]).

Lahtinen, J.P., Stein and Rose, JJ., concur.

ORDERED that the judgment is reversed, on the law, and violation of probation petition dismissed.