State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 29, 2015 106005 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MICHAEL B. HARE,

 Appellant.

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Calendar Date: November 21, 2014

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Paul J. Connolly, Delmar, for appellant.

G. Scott Walling, Special Prosecutor, Schenectady, for

respondent.

__________

Clark, J.

Appeal from a judgment of the County Court of Saratoga

County (Scarano, J.), rendered May 6, 2013, which revoked

defendant's probation and imposed a sentence of imprisonment.

In September 2012, defendant pleaded guilty to assault in

the second degree as the result of an incident wherein he injured

a State Trooper who was attempting to arrest him. County Court

imposed the agreed-upon sentence of time served to be followed by

five years of probation. Defendant was almost immediately

charged with violating the conditions of his probation by, among

other things, calling a former girlfriend and her mother on

multiple occasions and ignoring the direction of his probation

officer not to do so. Defendant contested the allegations and,

following a hearing, County Court determined that defendant had
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violated the terms of his probation. Defendant was thereafter

resentenced to two years in prison, to be followed by three years

of postrelease supervision, and he now appeals.

The People bear the burden of proving a probation

violation by a preponderance of the evidence (see CPL 410.70 [3];

People v Lapham, 117 AD3d 1341, 1341 [2014], lv denied 23 NY3d

1064 [2014]; People v Filipowicz, 111 AD3d 1022, 1022 [2013], lv

denied 22 NY3d 1156 [2014]). As defendant correctly notes, 

hearsay evidence will not support the finding of a probation

violation by itself (see People v Filipowicz, 111 AD3d at 1022-

1023). Inasmuch as defendant's probation officer testified that

defendant had admitted to making several of the offending calls

despite having been warned not to do so, however, nonhearsay

evidence supports the finding of a violation (see People v

Holland, 95 AD3d 1504, 1505 [2012], lv denied 19 NY3d 974 [2012];

People v Spady, 25 AD3d 881, 882 [2006]).

We also reject defendant's contention that he received

ineffective assistance of counsel. "A contention of ineffective

assistance of trial counsel requires proof of less than

meaningful representation, rather than simple disagreement with

strategies and tactics" (People v Rivera, 71 NY2d 705, 708-709

[1988] [citations omitted]; see People v Barboni, 21 NY3d 393,

405-406 [2013]). Defendant specifically claims that counsel was

ineffective for inadvertently eliciting on cross-examination the

fact that defendant had admitted making the forbidden telephone

calls to the probation officer. The record reflects that the

cross-examination was part of a legitimate trial strategy of

calling the basis for the officer's knowledge of the violations

into question, however, and it was not worded or designed to

elicit damaging testimony (see People v McCloud, 121 AD3d 1286,

1292 [2014]; People v Yelle, 303 AD2d 1043, 1044 [2003], lv

denied 100 NY2d 626 [2003]). When viewed in totality, we have no

difficulty concluding that defendant received meaningful

representation (see People v Wingo, 103 AD3d 1036, 1037 [2013],

lv denied 21 NY3d 1021 [2013]; People v Brickle, 244 AD2d 700,

702 [1997], lv denied 91 NY2d 889 [1998]).

Defendant additionally argues that County Court failed to

provide an adequate statement of its reasoning in revoking his
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probation (see Gagnon v Scarpelli, 411 US 778, 785-786 [1973];

People v McCloud, 205 AD2d 1024, 1025 [1994], lv denied 86 NY2d

738 [1995]). Defendant failed to preserve that argument by

objecting to the sufficiency of County Court's findings, however,

and we perceive no reason to take corrective action in the

interest of justice (see CPL 470.05 [2]; see e.g. People v

Junior, 119 AD3d 1228, 1231 [2014], lv denied 24 NY3d 1044

[2014]). Defendant's remaining contentions, including that the

sentence imposed was harsh and excessive, have been considered

and found to be lacking in merit.

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court