32 A.D.3d 1222
N.Y. App. Div.
2006

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ROBERT H. BROWN, Appellant.

Appellate Division of the Supreme Court of New York, Fourth Department

821 N.Y.S.2d 348

Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered March 22, 2005. The judgment revoked defendant‘s probation and imposed a term of incarceration.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment revoking the term of probation imposed upon his conviction of assault in the second degree (Penal Law § 120.05 [2]) and sentencing him to a term of incarceration. Defendant contends that the decision of the Supreme Court in Crawford v Washington (541 US 36 [2004]) precludes the use of a firearms report at his probation violation hearing. We reject that contention. Although the revocation of probation results in a loss of liberty, it is not a criminal prosecution (see generally Gagnon v Scarpelli, 411 US 778, 782 [1973]; Matter of Darvin M. v Jacobs, 69 NY2d 957, 959 [1987]). Thus, Crawford, which “preserved defendant‘s right to confront witnesses in the context of a criminal prosecution,” does not apply (People v Dort, 18 AD3d 23, 25 [2005], lv denied 4 NY3d 885 [2005]). In any event, any error in admitting the firearms report is harmless (see generally People v Crimmins, 36 NY2d 230, 237 [1975]). The sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Kehoe, Martoche, Smith and Pine, JJ.