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

406
KA 14-00521
PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEVEN ROBINSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Alex
R. Renzi, J.), rendered March 7, 2014. 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 modified on the law by vacating the sentence, and as
modified the judgment is affirmed and the matter is remitted to
Supreme Court, Monroe County, for resentencing in accordance with the
following memorandum: Defendant appeals from a judgment revoking the
sentence of probation previously imposed upon his conviction of
attempted burglary in the second degree (Penal Law §§ 110.00, 140.25
[2]), and convicting him of violating the terms and conditions of his
probation. After being placed on probation, defendant was arrested
and subsequently arraigned on a new indictment charging him with,
inter alia, criminal possession of a weapon in the second degree (§
265.03 [3]), and criminal possession of marihuana in the fifth degree
(§ 221.10 [2]). He was also arraigned on an information for
delinquency alleging that he violated the terms of his probation. The
information for delinquency alleged that he possessed a loaded weapon
and marihuana in November 2013, and that he also violated the terms of
his probation because he failed to report, failed to pay a fine and
surcharge, and consumed alcoholic beverages and marihuana on several
occasions while he was on probation.

     Supreme Court conducted a combined Mapp and violation of
probation hearing and then suppressed the marihuana, handgun and
ammunition seized from defendant’s house and person in November 2013.
The court also concluded, however, that defendant violated the terms
of his probation by possessing the contraband that the court
suppressed, as well as by violating the other terms of his probation,
as alleged in the information for delinquency. The court sentenced
                                 -2-                           406
                                                         KA 14-00521

defendant to a determinate term of three years’ incarceration plus
three years of postrelease supervision.

     We agree with defendant that the court erred in using the
unconstitutionally seized evidence as a basis upon which to revoke
defendant’s probationary sentence. The Court of Appeals has
“recognized . . . that a probationer loses some privacy expectations
and some part of the protections of the Fourth Amendment, but not all
of both” (People v Hale, 93 NY2d 454, 459), and “that a person on
parole, although legally in custody and subject to supervision, is
nevertheless constitutionally entitled to protection against
unreasonable searches and seizures. A person on probation, subject to
similar restraints (see CPL 410.50, subds. 1, 2)[,] should be
similarly protected” (People v Jackson, 46 NY2d 171, 174).
Furthermore, with respect to evidence that was illegally seized from a
person under a revocable disposition, “the Court of Appeals has
applied the New York constitution to suppress such evidence at a
parole revocation hearing . . . , and it would seem to follow a
fortiori that such evidence would not be admissible at a probation
violation hearing, which is even closer to a criminal action than a
parole violation hearing” (Peter Preiser, Practice Commentaries,
McKinney’s Cons Laws of NY, Book 11A, CPL 410.70 at 126). Here, the
court concluded that the stop and search of defendant and his home
were violative of defendant’s rights under the Constitutions of New
York and the United States. Consequently, the court erred in relying
upon the evidence seized as a result of those improper searches to
conclude that defendant violated a condition of his probation (see
generally People v Newhirk, 279 AD2d 535, 535-537).

     Nevertheless, defendant does not challenge on appeal the court’s
further findings that he engaged in other actions that violated his
probation, including failing to appear for a probation appointment and
consuming alcohol and marihuana, and we thus do not disturb the
court’s determination that he violated the terms of his probation
based on those other actions (see People v Welch, 55 AD3d 952, 953).
We therefore modify the judgment by vacating the sentence, and we
remit the matter to Supreme Court for resentencing based only on those
other actions (see People v Hudson, 263 AD2d 545, 546; People v
Randolph, 195 AD2d 699, 699-700; see generally People v Britton, 158
AD2d 932, 933, lv dismissed 86 NY2d 785).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
