People v. Eggsware

• Decision Date: 11 February 2015
• Parties: The PEOPLE of the State of New York, Respondent, v. Shawn EGGSWARE, Appellant.
• Court: New York Supreme Court — Appellate Division

?125 A.D.3d 1057
3 N.Y.S.3d 442
2015 N.Y. Slip Op. 01201

The PEOPLE of the State of New York, Respondent,
v.
Shawn EGGSWARE, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 11, 2015

Affirmed.

[3 N.Y.S.3d 443]

Matthew C. Hug, Troy, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: LAHTINEN, J.P., GARRY, DEVINE and CLARK, JJ. GARRY, J.

Appeal from a judgment of the Supreme Court (Teresi, J.), rendered June 11, 2013 in Albany County, which revoked defendant's probation and imposed a sentence of imprisonment.

Defendant pleaded guilty to one count of driving while intoxicated, and was sentenced in November 2012 to time served and five years of probation. The conditions of defendant's probation required that he, among other things, not own a motor vehicle without written permission, install an ignition interlock device on any vehicle that he owned or operated within 10 days of sentencing, maintain a residence and report as directed. In February 2013, he was charged with violating those conditions. Following a hearing, Supreme Court determined that defendant willfully violated the terms and conditions of his probation, denied his motion to set aside the verdict, revoked his probation, and sentenced him to 1 1/3 to 4 years in prison. Defendant now appeals.

We affirm. “The People have the burden of proving a probation violation by a preponderance of the evidence” ( People v. Lapham, 117 A.D.3d 1341, 1341, 987 N.Y.S.2d 117 [2014], lv. denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] [citations omitted] ). Moreover, “[h]earsay evidence is admissible in probation violation proceedings, [but] such evidence will not alone support the finding of a violation” ( People v. Filipowicz, 111 A.D.3d 1022, 1022–1023, 974 N.Y.S.2d 653 [2013], lv. denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ). Here, the probation officer, who was assigned to handle defendant's case until probation was transferred from Albany County to Rensselaer County, testified that defendant failed to comply with a letter directing him to call her by a certain date. When defendant did contact her on December 3, 2012 after being sent another letter, the probation officer informed him at that time, and again one week later, that he needed to sell his car or install an ignition interlock device. Shortly thereafter, defendant told the probation officer that he transferred title to...