                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 29, 2015                   105662
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

THOMAS J. COUPE,
                    Appellant.
________________________________


Calendar Date:   November 18, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Egan Jr. and Clark, JJ.

                             __________


     Margaret McCarthy, Ithaca, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira (Kevin M.
O'Shea of counsel), for respondent.

                             __________


McCarthy, J.

      Appeal from a judgment of the County Court of Chemung
County (Hayden, J.), rendered May 22, 2012, which revoked
defendant's probation and imposed a sentence of imprisonment.

      In 2008, defendant pleaded guilty to burglary in the third
degree and grand larceny in the fourth degree. County Court
sentenced him to six months in jail and five years of probation
and ordered him to pay restitution. In 2012, two violation
petitions were filed alleging that he failed to comply with
numerous conditions of his probation. Following a hearing, the
court found that defendant committed seven violations of the
conditions of his probation, revoked his probation and sentenced
him to an aggregate prison term of 1 to 3 years. Defendant
appeals.
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      Defendant received the effective assistance of counsel.
Counsel cannot be deemed ineffective for failing to raise a
baseless argument (see People v Addison, 219 AD2d 782, 783
[1995]). Although the record contains an order transferring
defendant's probation to another county and does not contain an
order transferring it back to Chemung County, there are several
references to the transfer back, and this Court can take judicial
notice of such an order, which we have reviewed (see People v
England, 48 AD3d 838, 838 [2008]). Thus, there is no merit to
defendant's current assertions that trial counsel should have
argued that County Court lacked jurisdiction and that the amended
conditions of probation were invalid because the Probation
Department in Chemung County lacked jurisdiction.

      Defendant contends that counsel was ineffective by not
objecting to the lack of reasonable notice of the allegations in
the second violation petition. A defendant is entitled to "a
reasonable adjournment . . . to enable him [or her] to prepare
for the hearing" (CPL 410.70 [2]). More than half of the
allegations were contained in the first petition, it is unclear
how long counsel was aware of the additional allegations, and
counsel may have had a tactical reason for not requesting an
adjournment (see People v Green, 31 AD3d 1048, 1051 [2006], lv
denied 7 NY3d 902 [2006]). Counsel used the incorrect date when
questioning the only defense witness about defendant's behavior
regarding a certain incident. This may have been error, but
County Court recognized the incorrect date and asked clarifying
questions regarding the proper date. Considering this further
questioning, we cannot say that counsel's error prejudiced
defendant.

      Defendant asserts that counsel failed to challenge the
sufficiency of the evidence, but counsel's cross-examination of
the probation officer raised factual questions about the People's
proof. The evidence was sufficient to prove the violation of
probation by a preponderance of the evidence as to all but one of
the allegations. Hearsay evidence is admissible and may be
considered, but it cannot alone support a finding of a probation
violation (see People v Filipowicz, 111 AD3d 1022, 1022-1023
[2013], lv denied 22 NY3d 1156 [2014]; People v DeMoney, 55 AD3d
953, 954 [2008]). While only hearsay was submitted to support
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the allegation that defendant failed to successfully complete an
anger management class, rendering the proof insufficient on that
allegation (see People v DeMoney, 55 AD3d at 954), the remaining
allegations were supported by other evidence, including
defendant's admissions to his probation officer, which was
sufficient to meet the legal standard (see People v Bower, 9 AD3d
603, 604 [2004], lv denied 3 NY3d 704 [2004]). Counsel elicited
evidence that defendant may not have been financially able to pay
the restitution and the costs associated with an ordered
evaluation, which could have made two of his violations
nonwillful. Despite this evidence and the inferences that could
be drawn from it, County Court could have determined that
defendant's violations were willful based on proof that defendant
had paid a large percentage of the restitution and then stopped
paying without explanation five months prior to the hearing, and
that his probation officer advised him to apply for Medicaid to
cover the costs of the evaluation. Viewing the record as a
whole, defendant was not deprived of meaningful representation.

      Considering the numerous chances that defendant was given
to avoid incarceration in state prison, both in connection with
his initial plea and when he previously violated his probation,
along with the multiple conditions that he was found to have
violated, we do not find County Court's sentence to be harsh or
excessive (see People v Pixley, 117 AD3d 1102, 1103 [2014], lv
denied ___ NY3d ___ [Dec. 3, 2014]; People v Filipowicz, 111 AD3d
at 1023).

     Lahtinen, J.P., Rose, Egan Jr. and Clark, JJ., concur.


     ORDERED that the judgment is affirmed.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
