State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 108067 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JOSEPH W. KISLOWSKI,

Appellant.

________________________________

Calendar Date: October 21, 2016

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

__________

William E. Montgomery III, Glens Falls, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Travis

A. Brown of counsel), for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the County Court of Warren County

(Hall Jr., J.), rendered December 17, 2014, which, among other

things, revoked defendant's probation and sentenced him to time

served.

In August 2013, defendant waived indictment, pleaded guilty

to a superior court information charging him with criminal

possession of a controlled substance in the third degree and was

sentenced to the agreed-upon term of five years of probation. 

Thereafter, in January 2014, defendant admitted that he had

violated certain terms of his probation, and County Court

directed that defendant enter a drug treatment facility and

participate in the Warren County Drug Treatment Court program. 

Defendant signed a written acknowledgment of the amended terms
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and conditions of his probation, which included a directive

(special condition No. 17) that defendant "[n]ot associate with

any drug users or convicted criminals."

In September 2014, a violation petition was filed alleging

that defendant – on four specific dates – "had contact with

Angela Nichols, a convicted criminal," in contravention of

special condition No. 17. An amended petition was filed one

month later, wherein it was alleged that defendant – "[o]n

multiple occasions" – had contact with Patrick Lilly, who also

was a convicted criminal. Following a hearing, County Court,

among other things, concluded that defendant had violated the

aforementioned term and condition of his probation, sentenced

defendant to time served and directed that he wear an electronic

monitoring device pending his entry into another drug treatment

program. Defendant now appeals.

We affirm. Defendant initially challenges the facial

sufficiency of the amended violation petition. Although a

violation of probation proceeding is not subject to all the

formalities of a criminal action (see People v Jangrow, 34 AD3d

991, 991-992 [2006]), CPL 410.70 (2) nonetheless provides that,

in the context of revoking a defendant's probation, "[t]he court

must file or cause to be filed with the clerk of the court 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." To that end, the

violation petition, together with any additional details supplied

by the People prior to the hearing, must give the defendant

"ample notice of the particulars of the violation charged" such

that he or she has "a full opportunity to prepare a defense"

(People v Schneider, 188 AD2d 754, 756 [1992], lv denied 81 NY2d

892 [1993]; see People v York, 2 AD3d 1158, 1160 [2003]).

Here, the amended violation petition set forth the term and

condition of his probation that defendant allegedly violated and,

as to Nichols, identified four specific dates upon which the

prohibited contact allegedly occurred. Contrary to the position

taken by the dissent, we find such allegations to be sufficiently

particular to have provided defendant with the required notice

and opportunity to prepare a defense. Defendant clearly was
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aware of the identity of the "convicted criminal" with whom he

allegedly associated and the specifics of the allegedly

prohibited conduct as evidenced by his colloquy with County Court

at his initial appearance on the violation petition. During the

course of that appearance, defendant inquired, "[Y]ou're talking

about the person that owns the dog, a former girlfriend?", to

which County Court replied, "Angela Nichols." Following that

exchange, defendant proceeded to dispute Nichols' criminal

history, claiming that she was not a felon and that his contact

with her was limited to walking the dog that they once shared,

thereby evidencing his awareness of the nature of the charges

against him as to Nichols. As to Lilly, however, such petition

failed to provide any details with respect to dates upon which

defendant allegedly had contact with him, and the record does not

reflect that the People provided defendant with any additional

details on this point prior to the hearing (compare People v

Schneider, 188 AD2d at 756). Accordingly, we agree with

defendant that the amended violation petition was facially

deficient as to Lilly, and County Court erred in considering any

proof with respect thereto.

As to the sufficiency of the proof adduced with respect to

Nichols, the People bore the burden of demonstrating – by a

preponderance of the evidence – that defendant violated a term

and condition of his probation (see People v Hare, 124 AD3d 1148,

1148 [2015], lv denied 26 NY3d 929 [2015]; People v McQuality, 95

AD3d 1369, 1370 [2012], lv denied 20 NY3d 1013 [2013]). The term

and condition at issue here – special condition No. 17 –

prohibited defendant from "associat[ing] with any drug users or

convicted criminals," and the People alleged that defendant

violated this prohibition by having contact with Nichols, his

former girlfriend and a convicted criminal, on four separate

occasions in August 2014.

Although Nichols' testimony regarding her criminal history

was not a model of clarity (and the People failed to enter

Nichols' certificate of conviction into evidence at the hearing),

Nichols nonetheless testified that she had "a misdemeanor DWI"

and that defendant was aware that she had been "sentenced to

probation" as a result. As a misdemeanor conviction for driving

while intoxicated indeed would constitute a crime (see Penal Law
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§ 10.00 [6]; Vehicle and Traffic Law § 1193 [1] [b]), Nichols

thus qualified as a "convicted criminal" for purposes of special

condition No. 17. As for defendant's stated belief that Nichols

had only been convicted of driving while ability impaired, an

offense that, in certain instances, would constitute only a

traffic violation (see Vehicle and Traffic Law § 1193 [1] [a]),

his erroneous belief in this regard is irrelevant. Special

condition No. 17 required defendant to refrain from associating

with "convicted criminals" – as opposed to "known criminals." 

Accordingly, defendant cannot avoid a violation of the subject

condition simply by claiming either that he did not know that a

particular individual had been convicted of a crime or that he

believed that said individual was guilty of only a traffic

violation. As a probationer subject to special condition No. 17,

it was incumbent upon defendant to ascertain whether any of his

associates, including Nichols, constituted "convicted criminals."

With respect to the issue of whether defendant

"associate[d]" with Nichols within the meaning of special

condition No. 17, the testimony at the hearing further

demonstrated that, on approximately four occasions during August

2014, defendant called either Nichols or her daughter and

thereafter went to Nichols' apartment for the purpose of picking

up and walking the dog that defendant and Nichols once shared. 

Notably, Nichols confirmed that she spoke with defendant, with

whom she remained friends, on the telephone to make arrangements

regarding the dog and testified that she personally exchanged the

dog with defendant "[a]bout four times," stating, "I would hand

him the dog and he would take the dog and go down the street." 

Given the nature of the multiple, planned meetings between

Nichols and defendant, including their contact over the telephone

and in person, we have no quarrel with County Court's finding

that such encounters were more than mere incidental or

inadvertent contact and, as such, constituted a violation of

special condition No. 17 of defendant's probation prohibiting him

from "associat[ing]" with, among others, convicted criminals. 

Although the dissent adopts a contrary position in this regard,

we cannot help but note that Nichols' testimony that she and

defendant "remain[ed] friends" places Nichols squarely within the

dissent's definition of an "associate," i.e., "a partner, friend,

or companion" (Merriam-Webster Online Dictionary, associate).
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As a final matter, although County Court's written decision

following the hearing referenced matters relative to defendant's

history and performance while on probation that were outside of

the record, inasmuch as the remaining evidence supports the

finding that defendant violated the terms of his probation, we

deem this error to be harmless (see People v Oehler, 52 AD3d 955,

956 [2008], lv denied 11 NY3d 792 [2008]). Defendant's remaining

contentions, to the extent not specifically addressed, have been

examined and found to be lacking in merit.

McCarthy, J.P., and Clark, J., concur.

Lynch, J. (dissenting).

Initially, we fully agree with the majority that the

amended violation petition was facially deficient as to Patrick

Lilly. We part ways with respect to Angela Nichols for two

reasons. First, we find the amended violation petition also

facially deficient as to Nichols. Pursuant to CPL 410.70 (2),

"[t]he court must file or cause to be filed with the clerk of the

court 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" (see People v

York, 2 AD3d 1158, 1160 [2003]). The defendant is entitled to

"notice of the particulars of the violation charged" so as to

have "a full opportunity to prepare a defense" (People v

Schneider, 188 AD2d 754, 756 [1992], lv denied 81 NY2d 892

[1993]). Here, the amended violation petition – prepared almost

two months after defendant's arraignment – simply reiterated

that, on four dates in August 2014, "defendant had contact with

Angela Nichols, a convicted criminal." This pleading fails to

provide the required particulars for the violation charge. Nor

was the defect cured by questions raised by defendant during his

arraignment as to whether the charge pertained to him walking

Nichols' dog. Notably, the People gave no clarifying response at

the arraignment and provided no further details of the charge in

the amended violation petition, which simply added the Lilly

charge. Instead, the specific nature of defendant's challenged

conduct – the fact that he contacted Nichols on up to four

occasions to walk the dog – was not defined until the hearing. 
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By comparison, in People v Schneider (supra), the People complied

with CPL 410.70 by supplying additional documentation after the

petition was filed, which provided the facts underlying the

charges well in advance of the hearing (see People v Schneider,

188 AD2d at 756). For this reason the judgment should be

reversed and the violation petition dismissed. 

In addition, it is our view that the People failed to meet

their burden of proving a probation violation by a preponderance

of the evidence (see CPL 410.70 [3]). Special condition No. 17

directed defendant to "[n]ot associate with any drug users or

convicted criminals." As the majority correctly points out,

Nichols' misdemeanor driving while intoxicated conviction

constitutes a crime (see Penal Law § 10.00 [6]; Vehicle and

Traffic Law § 1193 [1] [b]). Moreover, Nichols testified that

defendant knew she "was sentenced to probation," even though both

Nichols, in her testimony, and defendant, through his statements

at the arraignment, professed uncertainty as to whether she had

been convicted of a crime. That said, the amended violation

petition merely alleged that defendant had "contact" with

Nichols. The testimony showed that the "contact" consisted of

defendant calling Nichols on four occasions to arrange to walk

her dog, which they had previously owned together. Put

succinctly, Nichols testified that "[defendant] would call [her]

or [her] daughter . . . and he would go to the entrance of [her]

apartment and be given the dog and told when the dog was supposed

to be home, and that was the brunt of it." She testified this

happened approximately four times. There is no dispute that the

described contact occurred, but we fail to see how such conduct

falls within the prohibition "[n]ot [to] associate" with a

convicted criminal. Given its ordinary meaning, the word

"associate" covers a far more extensive engagement with another

person than the simple sequence of events that led to defendant's

walking the dog. Associate is defined as: "to join as a

partner, friend, or companion" (Merriam-Webster Online

Dictionary, associate). In our view, the challenged conduct does

not violate special condition No. 17. For this additional

reason, the judgment should be reversed.

Aarons, J., concurs.
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ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court