People v Russell
Appellate Division, Third Department
May 1, 2014
2014 NY Slip Op 02979 [117 AD3d 1102]
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 2, 2014
Paul J. Connolly, Delmar, for appellant.
James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.
Garry, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered May 9, 2012, which revoked defendant‘s probation and imposed a sentence of imprisonment.
In 2005, pursuant to a plea agreement, defendant waived indictment and pleaded guilty to a superior court information charging him with rape in the third degree. In accord with the plea agreement, defendant was sentenced to 10 years of probation. In 2012, defendant was charged with violating the terms of his probation based upon his conviction after trial of various predatory sexual offenses. Taking judicial notice of the recent convictions, County Court revoked defendant‘s probation on that basis and sentenced him to a prison term of 1 to 3 years. Defendant appeals.
The judgment of conviction with respect to the underlying crimes, upon which defendant‘s violation of probation was based, was recently reversed by this Court (People v Russell, 116 AD3d 1090 [2014]). Accordingly, as the finding of violation was based solely upon the certificate of the convictions, reversal of this probation violation is required (see People v Reed, 186 AD2d 159, 160 [1992]; People v Bradford, 162 AD2d 457, 458 [1990]; see also People v Fearnot, 200 AD2d 583, 584 [1994]).
Lahtinen, J.P., Stein and Rose, JJ., concur. Ordered that the judgment is reversed, on the law, and violation of probation petition dismissed.