        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

175
KA 11-01384
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONALD JULIUS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), entered June 7, 2010. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
imprisonment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment revoking the
sentence of probation previously imposed upon his conviction of sexual
abuse in the first degree (Penal Law § 130.65 [1]) and sentencing him
to, inter alia, a determinate term of incarceration of five years.
Contrary to defendant’s contention, we conclude that Supreme Court
properly determined that the People established by the requisite
“preponderance of the evidence” that defendant violated the terms and
conditions of his probation (People v Ortiz, 94 AD3d 1436, 1436, lv
denied 19 NY3d 999; see CPL 410.70 [3]; People v Pringle, 72 AD3d
1629, 1629, lv denied 15 NY3d 855; People v Van Every, 26 AD3d 777,
777). The evidence adduced at the hearing established that defendant
had failed to obtain or maintain “legitimate verifiable employment,”
to undergo required evaluations, and to enroll in required treatment
programs.

     Relying on CPL 100.15 and 100.40 and juvenile delinquency cases,
defendant further contends that the first, second and third
declarations of delinquency were jurisdictionally defective because
they failed to contain nonhearsay allegations. We reject that
contention. First, CPL sections 100.15 (3) and 100.40 (1) (c) concern
local criminal court accusatory instruments such as informations and
misdemeanor and felony complaints. Those sections do not address the
requirements for violation of probation (VOP) petitions, which are
found in CPL article 410. Second, although Family Court Act § 360.2
                                 -2-                           175
                                                         KA 11-01384

(2) specifically requires that VOP petitions in juvenile delinquency
proceedings contain “[n]on[]hearsay allegations . . . establish[ing],
if true, every violation charged,” there is no corresponding
requirement in CPL article 410. At most, CPL 410.70 (2) requires that
the court “file or cause to be filed . . . a statement setting forth
the condition or conditions of the sentence violated and a reasonable
description of the time, place and manner in which the violation
occurred.” There is no requirement that the statement contain
nonhearsay allegations.

     In any event, we agree with the People that, were there such a
requirement in the CPL, the reasoning of Matter of Markim Q. (7 NY3d
405, 410-411) would apply such that the lack of nonhearsay allegations
in the VOP petition would not constitute a jurisdictional defect. “A
VOP petition, [unlike an original accusatory instrument], is not the
foundation of the court’s jurisdiction. It does not commence a new
proceeding, but is simply a new step in an existing one” (id. at 410).

     The People correctly concede that defendant’s waiver of the right
to appeal with respect to the VOP admissions on the first and third
declarations of delinquency was insufficient to encompass his
challenge to the severity of the sentence imposed upon the VOP (see
People v Maracle, 19 NY3d 925, 928). We nevertheless conclude that
the sentence is not unduly harsh or severe.




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
