On 12 August 1992, the defendant was sentenced as a Youthful Offender to time served and five years of probation upon his guilty plea to robbery in the second degree. On 31 January 1994, the Probation Department filed a Declaration of Delinquency and Specifications alleging that the defendant had violated the terms and conditions of his probationary sentence by knowingly and unlawfully selling a narcotic drug. The same allegation led to the defendant’s indictment for criminal sale of a controlled substance in the third degree. He has pleaded not guilty to both the specification and the new indictment.
The defendant filed this motion presenting the issue of whether a Violation-of-Probation proceeding, based upon the defendant’s alleged commission of a newly-indicted drug crime, must be held in abeyance until the new charges were resolved by way of guilty plea or trial.
The defendant contended that all proceedings on the violation of probation must be held in abeyance pending resolution of the charges in the indictment. He relied largely on the dictum enunciated in People v Amaro (1974) where the Court held that a judicial declaration of delinquency and the issuance of a bench warrant for a probationer’s arrest were not authorized upon a mere allegation or showing that the probationer has been arrested for a new offense.
Here, however, the Declaration of Delinquency and Specifications alleged against the defendant was not merely that the he was arrested but that he knowingly and unlawfully sold a narcotic drug. Nevertheless, in Amaro, the Court noted favorably certain recommendations made in 1973 by the National Advisory Commission on Criminal Justice Standards and Goals. Those recommendations, upon which the defendant in the instant case apparently relied, provided in pertinent part as follows:
“Revocation of probation for the commission of a new offense or offenses often is used in lieu of formal trial procedures. The Commission believes that this is a misuse of revocation procedure. The offender should be charged formally and tried for new criminal violations. If the offender is found guilty, the court may use the criteria and procedures governing initial sentencing decisions in determining his or her resentencing decision * * *. If the offender is found not guilty, the charges should not be used as a basis for revocation.”
In view of the Court of this instant case, any suggestion that a probationer must be tried and convicted for a new crime before its commission can be used as a basis for revocation was without support in law.
A probationary sentence is deemed a “tentative” one and may be altered or revoked upon a showing that the probationer has violated its conditions (Penal Law § 60.01 & CPL 410.70. Thus the purpose of any Violation-of-Probation hearing in the case at bar will be to determine whether the defendant committed acts which violated the terms and conditions of his probationary sentence and not necessarily whether he committed a felony.
If found to be in violation of probation, the criminal defendant stands to be deprived, not of the absolute liberty to which citizens were ordinarily entitled, but only of liberty which, because of his Youthful Offender adjudication, was lawfully conditioned upon his observance of certain terms and restrictions. Consequently, the fact that his commission of the charged acts need only be established at the hearing by preponderance of the evidence rather than beyond a reasonable doubt.
Since convictions required proof of guilt beyond a reasonable doubt, making a conviction a prerequisite for revocation of probation would unreasonably elevate the applicable standard of proof for one type of violation above all others. It would mean, for example, that a probationer could have his probation revoked and be resentenced to incarceration if the preponderance of evidence established that he had failed to report to his probation officer but not that he had committed murder.
In People v Crandall, the Court observed that the Commission’s recommendations cited in Amaro “only relate to those instances where the commission of a new offense is employed as the predicate for revocation without the issuance of a formal charge by the probation department, the issuance of an arrest warrant, an appropriate notice to appear to the defendant, the assignment of counsel if the defendant cannot afford his own and the holding of a full and complete adversary hearing.”
In the case at bar, a formal charge has been filed by the Probation Department, the defendant has appeared with counsel, and a full adversary hearing would be conducted on the issue of whether he committed the acts of which he stands accused in the Declaration of Delinquency and Specifications. Therefore, no principle of law or consideration of legally cognizable prejudice to the defendant required that the hearing on the violation of probation await resolution of the underlying charges. Accordingly, the defendant’s motion was denied in all respects.
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