People v. Kovarik
| Decision Date | 01 July 1985 |
| Citation | 112 A.D.2d 170,491 N.Y.S.2d 67 |
| Parties | The PEOPLE, etc., Respondent, v. Frank KOVARIK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John M. Lockwood, Huntington, for appellant.
Patrick Henry, Dist. Atty., Riverhead (Mark D. Cohen, Riverhead, of counsel), for respondent.
Before BRACKEN, J.P., and O'CONNOR, RUBIN and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from an amended judgment of the County Court, Suffolk County, rendered December 14, 1983, which, after a hearing, adjudicated him to be in violation of probation and imposed a sentence of imprisonment. Assigned counsel has submitted a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, in which he seeks to be relieved.
Amended judgment reversed, on the law and the facts, original judgment reinstated, and charges that defendant violated his probation dismissed. Assigned counsel's application to be relieved is deemed moot.
Defendant was charged with the commission of four offenses while on probation. While strict rules of evidence need not be followed at a probation violation hearing (CPL 410.70[3] ), a finding of probation violation must be based "upon a preponderance of the evidence * * * which requires a residuum of legally competent evidence in the record" (People v. Machia, 96 A.D.2d 1113, 1114, 467 N.Y.S.2d 708; People v. Todd D., 100 A.D.2d 595, 473 N.Y.S.2d 543). The People's case cannot rest entirely on hearsay (People v. Machia, supra, 96 A.D.2d at p. 1114, 473 N.Y.S.2d 543).
The only offense in the instant matter which did not rest entirely upon hearsay evidence was a charge of resisting arrest (Penal Law § 205.30). The arresting officer testified that defendant was sitting in the middle of the parking lot of the Road House Pub with one shoe on and one shoe off in an intoxicated condition and "rambling" and not making "any sense". When placed under arrest, defendant held his arms out, allegedly necessitating the help of "five" officers to cuff him. Although the question of whether defendant was so intoxicated as to be unable to form the requisite intent to be guilty of resisting arrest is ordinarily an issue for the trier of fact (cf. People v. Shapiro, 96 A.D.2d 626, 627, 464 N.Y.S.2d 880), the hearing court did not address this issue. We therefore reach this issue under our power to make factual determinations (CPL 470.15[1] ) and hold that the finding that defendant possessed the...
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People v. Herring, 2018-13103
...People v. Park , 203 A.D.2d 596, 612 N.Y.S.2d 938 ). However, the People's case cannot rest entirely on hearsay (see People v. Kovarik , 112 A.D.2d 170, 491 N.Y.S.2d 67 ). Here, the defendant correctly contends that the County Court erred in finding that he violated the condition of his pro......
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People v. Ramos
...(People v. Todd D., 100 A.D.2d 595, 473 N.Y.S.2d 543). As such, the People's case cannot rest entirely on hearsay (see, People v. Kovarik, 112 A.D.2d 170, 491 N.Y.S.2d 67; People v. Machia, 96 A.D.2d 1113, 1114, 467 N.Y.S.2d Here, contrary to the defendant's contention, the People did prese......
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People v. Davis
...595 " (People v. Kovarik, 12 A.D.2d 170, 491 N.Y.S.2d 67). Thus, the prosecution's case may not rest entirely on hearsay (see, People v. Kovarik, supra; People v. Machia, supra ). Contrary to the defendant's position, the evidence adduced by the prosecution herein was not entirely hearsay b......
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People v. Morton
...also, People ex rel. Maiello v. New York State Bd. of Parole, 65 N.Y.2d 145, 146-147, 490 N.Y.S.2d 742, 480 N.E.2d 356; People v. Kovarik, 112 A.D.2d 170, 491 N.Y.S.2d 67; People v. Tyrrell, 101 A.D.2d 946, 475 N.Y.S.2d 937). As we have previously held, a defendant's "statutory and due proc......