People v. Mitchell

Citation201 A.D.2d 507,607 N.Y.S.2d 417
PartiesThe PEOPLE, etc., Respondent, v. Ronnie MITCHELL, a/k/a Ronald Quattlebaum, Appellant.
Decision Date07 February 1994
CourtNew York Supreme Court Appellate Division

Steven N. Feinman, White Plains, for appellant.

Paul A. Crotty, Corp. Counsel, New York City (Larry A. Sonnenshein and Mordecai Newman, of counsel), for respondent.

Before BRACKEN, J.P., and SULLIVAN, KRAUSMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from an amended judgment of the Supreme Court, Queens County (Joy, J.), rendered June 3, 1991, as amended March 25, 1992, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, after a hearing, and imposing a sentence of imprisonment upon his previous conviction of attempted criminal sale of a controlled substance in the third degree.

ORDERED that the matter is remitted to the Supreme Court, Queens County, to hear and report whether the Department of Probation has in its possession any prior statements of the hearing witnesses regarding the events to which they testified at the hearing on the defendant's violation of probation, and the appeal is held in abeyance in the interim. The Supreme Court shall issue its report with all deliberate speed.

We find unpersuasive the contention of the Department of Probation that the defendant waived his right to pursue the instant appeal in a subsequent plea agreement on an unrelated indictment. Neither the oral waiver entered on the record in connection with that plea nor the written waiver form executed by the defendant indicated that the waiver of the right to appeal extended to the previous probation violation (cf., People v. Graham, 177 A.D.2d 505, 575 N.Y.S.2d 715).

Similarly unavailing is the claim of the Department of Probation that the present appeal should be dismissed because the defendant has already challenged the probation violation as part of his excessive sentence appeal from another conviction. The record and the order of this court determining that excessive sentence appeal refute this assertion (see, People v. Quattlebaum, 196 A.D.2d 950, 603 N.Y.S.2d 254).

We reject the defendant's contention that the court's determination regarding his violation of probation is not supported by legally sufficient proof and is against the weight of the evidence. The testimony of the victim and an eyewitness and the introduction of the victim's hospital records amply demonstrated by a preponderance of the evidence that the defendant violated a condition of his probation (see generally, CPL 410.70[3]; People v. Schneider, 188 A.D.2d 754, 591 N.Y.S.2d 550; People v. Davis, 155 A.D.2d 610, 547 N.Y.S.2d 666; People v. Gardner, 116 A.D.2d 735, 497 N.Y.S.2d 777; People v. Howland, 108 A.D.2d 1019, 485 N.Y.S.2d 589). To the extent that the defendant challenges the veracity of the hearing witnesses by pointing to inconsistencies in their testimony, we note that these discrepancies raised an issue of credibility for the court...

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9 cases
  • State v. Hill
    • United States
    • South Carolina Court of Appeals
    • 11 Mayo 2004
    ...Ga.App. 321, 306 S.E.2d 394 (1983); People v. DeWitt, 78 Ill.2d 82, 34 Ill.Dec. 319, 397 N.E.2d 1385 (1979); People v. Mitchell, 201 A.D.2d 507, 607 N.Y.S.2d 417 (N.Y.App.Div.1994); State v. Gedutis, 163 Vt. 591, 653 A.2d 761 Given our appellate courts have extended the application of Brady......
  • Washpon v. New York State Dist. Atty., Kings County
    • United States
    • New York Supreme Court
    • 13 Marzo 1995
    ...has no power to order discovery on its own (see, Matter of Hynes v. Cirigliano, 180 A.D.2d 659, 579 N.Y.S.2d 171; People v. Mitchell, 201 A.D.2d 507, 607 N.Y.S.2d 417). Ordering the testing through the inherent powers of the court in the interests of justice is equally problematic. There is......
  • People v. Lilley
    • United States
    • New York Supreme Court — Appellate Division
    • 17 Abril 1997
    ...defendant violated the conditions of his probation (see, People v. Dolan, 206 A.D.2d 669, 670, 614 N.Y.S.2d 945; People v. Mitchell, 201 A.D.2d 507, 508, 607 N.Y.S.2d 417). As to defendant's challenge to the sentence imposed, in view of defendant's prior and current probation violations we ......
  • People v. Martir
    • United States
    • New York Supreme Court — Appellate Division
    • 7 Febrero 1994
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