People v. Cangialosi , 716 N.Y.S.2d 210 ( 2000 )

—Judgment unanimously reversed on the law, declaration of delinquency vacated and sentence of probation reinstated. Memorandum: The People did not sustain their burden of proving by a preponderance of the evidence that defendant violated a condition of probation (see, CPL 410.70 [3]). The only material evidence offered was the transcript of prior testimony at the underlying criminal trial.

Although the transcript was admissible at the probation violation hearing (see, CPL 410.70 [3]), it did not qualify as competent evidence under the former testimony exception to the hearsay rule (see generally, Prince, Richardson on Evidence § 8-513 [Farrell 11th ed]), and thus the People failed to meet their burden of proof (see, People v Owens, 258 AD2d 901, lv denied 93 NY2d 975; People v Usher, 80 AD2d 730).

Defendant further contends that the 15-month delay between the filing of the declaration of delinquency and the violation hearing denied him the right to a prompt hearing (see, CPL 410.70 [1]). We disagree. Defendant requested a postponement of the violation hearing until such time as the criminal charges were presented to the Grand Jury and his suppression motions were decided. Defendant also indicated that a further adjournment was needed to enable him to obtain the transcripts of the suppression hearing and trial. Under the circumstances, defendant was not denied his right to a prompt hearing. (Appeal from Judgment of Supreme Court, Monroe County, Mark, J.— Violation of Probation.) Present — Green, J. P., Pine, Wisner, Kehoe and Balio, JJ.