People v Brown

[*1] People v Brown 2005 NY Slip Op 50146(U) Decided on February 10, 2005 Ontario County Ct Doran, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 10, 2005
Ontario County Ct

PEOPLE OF THE STATE OF NEW YORK,

against

ROBERT BROWN, Defendant.



03-DI-146



R. MICHAEL TANTILLO,

District Attorney of Ontario County

Attorney for the People

SCOTT FALVEY, Esq.

Attorney for the Defendant

Craig J. Doran, J.

On December 16, 2003, defendant was sentenced to, inter alia, five years' probation after pleading guilty to Assault in the Second Degree, in violation of Section 120.05(2) of the Penal Law. Subsequently, a declaration of delinquency has been filed herein, alleging that the defendant has violated certain conditions of his probation sentence.

A hearing was held, pursuant to §410.70 of the Criminal Procedure Law, on the alleged violation of probation. During the hearing, the People sought to introduce into evidence as People's Exhibit 1, a report from the Monroe County Public Safety Laboratory concerning test results of a semi-automatic pistol, bearing serial number 91167.

Defense counsel has objected to the admission of same, asserting that the defendant's 6th Amendment right to cross-examine witnesses would be violated by admission of the of the Monroe County Public Safety Laboratory's report. Counsel for the defendant relied upon the recent Supreme Court decision in Crawford v. Washington, 541 US 36, in support of his argument. This Court disagrees with the defendant's assertion.

It is the general rule that a violation of probation hearing is a summary proceeding which [*2]does not trigger strict evidentiary rules or all the procedural safeguards available to a defendant in a criminal action, and that statutory and due process rights are met as long as defendant is given formal notice of the charges, along with an opportunity to be heard (see, People v. Recor, 209 AD2d 831; CPL §410.70[3]). The Court of Appeals has held that a violation of probation giving rise to a revocation proceeding is not a crime or offense, nor a criminal action which terminates upon sentencing, but rather a criminal proceeding brought for the purpose of determining if the defendant's subsequent acts violated the conditions of his sentence, not whether the acts constituted a crime(see, Darvin M. V. Jacobs, 69 NY2d 957).

In Crawford v. Washington, supra, the question presented to the Supreme Court was whether the procedure in issue in that case complied with the Sixth Amendment's guarantee that "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."

Because it has been determined that a violation of probation is not a criminal prosecution, this Court finds and determines that Crawford v. Washington, is not applicable. Therefore, People's Exhibit 1 is hereby admitted into evidence. THIS SHALL CONSTITUTE THE DECISION AND ORDER OF THE COURT.

Signed this 10th day of February, 2005, at Canandaigua, New York.

_________________________________

Craig J. Doran

County Court Judge