People v. Filipowicz

• Decision Date: 14 November 2013
• Citation: 111 A.D.3d 1022,2013 N.Y. Slip Op. 07518,974 N.Y.S.2d 653
• Parties: The PEOPLE of the State of New York, Respondent, v. Ralph FILIPOWICZ, Appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1022
974 N.Y.S.2d 653
2013 N.Y. Slip Op. 07518

The PEOPLE of the State of New York, Respondent,
v.
Ralph FILIPOWICZ, Appellant.

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

Nov. 14, 2013.

[974 N.Y.S.2d 654]

Thomas F. Garner, Middleburgh, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: STEIN, J.P., McCARTHY, SPAIN and GARRY, JJ.

SPAIN, J.

Appeals (1) from a judgment of the County Court of Ulster County (McGinty, J.), rendered June 30, 2010, which revoked defendant's probation and imposed a sentence of imprisonment, and (2) from a judgment of said court, rendered February 23, 2011, which resentenced defendant.

In 2008, defendant pleaded guilty to rape in the second degree and criminal contempt in the first degree and was sentenced to an aggregate term of probation of 10 years. In addition, a 10–year order of protection was issued precluding defendant from having any contact with the victim. In 2010, defendant's probation officer filed an affidavit of violation of probation alleging that, while defendant was incarcerated at the Ulster County jail on an unrelated matter, he enlisted another inmate to call the rape victim several times, thereby violating conditions of his probation requiring him to refrain from the commission of any crimes, refrain from contact with the victim and abide by the terms of any order of protection. Following a hearing at which County Court found that defendant violated his probation, the court revoked his probation and imposed concurrent prison sentences of five years on the rape conviction and 1 1/3 to 4 years on the criminal contempt conviction. Recognizing that the sentence imposed upon the rape conviction was not authorized, County Court resentenced defendant to a prison term of 2 1/3 to 7 years on that conviction. Defendant now appeals.

Contrary to defendant's claims, the People proved by a preponderance of the evidence that defendant violated a condition of his probation ( seeCPL 410.70[3]; People v. Bevilacqua, 91 A.D.3d 1120, 1120, 936 N.Y.S.2d 397 [2012];People v. Hunter, 62 A.D.3d 1207, 1208, 879 N.Y.S.2d 626 [2009];People v. DeMarco, 60 A.D.3d 1107, 1108, 875 N.Y.S.2d 602 [2009] ). Hearsay evidence is admissible in probation violation proceedings, although such evidence will not alone support the finding of a violation ( see People v. Bevilacqua, 91 A.D.3d at 1120, 936 N.Y.S.2d 397;People v. Hunter, 62 A.D.3d at...