GOSHEN – The Appellate Division of State Supreme Court has reduced the sentence of a man who was found to have violated conditions of his probation for the crime of criminal sale of a controlled substance.
Orange County Court Judge Craig Stephen Brown had sentenced Walter Herring to 6 ½ years in state prison followed by two years of post-release supervision after he was found to have violated conditions of his probation sentence.
The appellate court amended the county court judgment “as a matter of discretion in the interest of justice” by reducing the sentence to 2 ½ years in prison followed by two years of post release supervision.
Herring waived his right to appeal his sentence, but was later found to violate probation by being subsequently arrested and indicted for attempted murder and by using marijuana.
That is when the court imposed the prison sentence.
But, Herring maintained the county court erred in finding that he violated the condition of his probation prohibiting him from committing any additional crime.
“While the court would have been permitted to take judicial notice of the defendant’s subsequent indictment for attempted murder, that evidence was presented after the close of evidence at the revocation of probation hearing,” the appellate justices wrote. “The defendant had no opportunity to be heard regarding the indictment and related documents relied upon by the court. Accordingly, the court should not have found that the defendant violated the condition of his probation based upon the commission of a new crime.”
