A look at some grounds for violation of probation
By: Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York
A defendant may be placed on probation as part of a sentence for a misdemeanor or felony. Often the terms and conditions that will be imposed are standard, Penal Law § 65.10(2). However, additional terms may be added. If the defendant complies with these terms and conditions, the probationary term will end, or may be ended even earlier than what was set at sentencing.
But a defendant who fails to comply with any probation term may be violated on probation. Among the grounds for violation of probation are the following:
• failure to report to a probation officer, Penal Law § 65.10(3)(a); People v. Walts, 34 AD3d 1043 (3d Dept 2006);
• failure to pay restitution, if this is made a condition of probation, see People v. Birch, 35 AD3d 1026 (3d Dept 2006).
• conviction of a crime or violation (though not of a traffic infraction), CPL 410.10(2); see People v. Gagnon, 245 AD2d 593 (3d Dept 1997); People v. Johnson, 173 Misc2d 254 (County Court 1997).
Where a defendant, charged with violation of probation, is convicted of a crime, no hearing is required, although defendant is entitled to an opportunity to be heard, CPL 410.70(1); People v. Matos, 28 AD3d 1120 (4th Dept 2006).
An act that serves as the basis for a violation of probation may also be used for a new criminal charge, without violating double jeopardy, People v. Pollak, 130 AD2d 908 (3d Dept 1987).
A defendant may not be violated on probation based on a finding that he would violate a condition in the future, People v. Robeck, 99 AD3d 946 (2d Dept 2012) (restitution).
A violation of probation is not a basis for charging criminal contempt, People v. Stefanello, 195 Misc 2d 262 (County Ct 2003); see Darvin M. v. Jacobs, 69 NY2d 957 (1987).
© 2013 by Gary Muldoon