People v. Usher

Judgment insofar as it resentenced defendant upon a finding of violation of probation unanimously vacated and defendant restored to probation. Memorandum: The People’s evidence failed to establish what defendant’s reporting obligation was, that he was aware of it or that he had violated it. The only material evidence offered was the affidavit of defendant’s probation officer. While the affidavit was admissible under the broad rules governing violation hearings, it did not qualify as competent evidence under the business record exception to the hearsay rule. That being so, there was no residuum of competent legal evidence in the record to support the court’s determination that defendant had violated probation (see People ex rel. Wallace v State of New York, 70 AD2d 781; People v Lynch, 31 AD2d 753). (Appeal from judgment of Monroe County Court — burglary, third degree.) Present — Cardamone, J. P., Simons, Callahan, Doerr and Schnepp, JJ.