v.

JENNIFER YATES, Appellant.

Submitted By: Tammy Feman (counsel for the appellant); Douglas Noll (counsel for the respondent)

Judgment Modified / Sentence Reduced: Andrew J. DiPaola, P.J.; Angelo J. Ingrassia & Louis C. Palella, JJ.

DECISION OF THE COURT

<SM-1>

Appeal by defendant from an amended judgment of the District Court, Nassau County (M. Fietcher, J.) rendered March 28, 1998, upon finding her in violation of probation, sentencing her to 60 days imprisonment as a condition of and to run concurrently with the remaining period of probation.

Amended judgment of conviction unanimously modified as a matter of discretion in the interest of justice by reducing the term of imprisonment to 30 days and, as so modified, affirmed.

CPL 410.70 states a defendant charged with violating probation is entitled to a hearing and the court "must ask the defendant whether he wishes to make any statement with respect <SM-2> to the violation. If the defendant makes a statement, the court may accept it and base its decision thereon. If the court does not accept it, or if the defendant does not make a statement, the court must proceed with the hearing". In the case at bar, defendant accepted the court's offer to make a statement on her own behalf. During the statement defendant asserted that she did not leave the jurisdiction without telling probation because she remembered speaking to someone at probation. Only after it seemed as if there was a possibility that defendant did not violate the conditions of her probation did the court decide to hold a hearing, which was well within its discretion.

It is well settled that a "hearing on a probation violation is a summary, informal procedure which does not require strict adherence to the rules of evidence; statutory and due process requirements are met so long as the defendant is given formal notice of the charges and an opportunity to be heard and to confront witnesses against him through cross-examination" (People v. Tyrrell, 101 AD2d 946). The People have the burden of proving the violation by a preponderance of the evidence (CPL 410.70[3]) and a finding that the defendant violated probation must be supported by a "residuum of competent legal evidence in the record" (People v. Rennie, 190 AD2d 830).<SM-3> In the case at bar, the probation officer's testimony sufficiently established that defendant violated the conditions of her probation by a preponderance of the evidence.

Accordingly, the court below could modify defendant's probation and resentence her, which it did on March 28, 1998 after obtaining an updated presentence report, although the law is clear that an updated presentence report is not mandatory (People v. Kuey, 83 NY2d 278). Moreover, there is no merit to defendant's claim of vindictiveness and the court was not required to articulate its reasons for a particular sentence (cf., Black v. Romano, 471 US 606, 612-614).

Nevertheless, it is our opinion that the interests of justice would best be served by reducing the term of imprisonment to 30 days.

__