Issue Presented:  Kislowski was determined by the lower court to have violated the terms of his probation which specified that he was not to associate with convicted criminals.  The specification cited to four dates on which he had contact with "Angela Nichols" --a former girlfriend with whom he shared a dog.  The contact related to four times he had arranged to walk the dog.  Nichols had a DWI misdemeanor conviction.

 

The Third Department found that the specifications satisfied the provisions of C.P.L. section 410.70(2) which requires that a statement be filed with the clerk of the court setting forth the condition violated and a reasonable description of the time, place and manner in which the violation occurred.  The purpose of this provision is to provide the defendant with a full opportunity to prepare a defense.  During his arraignment on the charges, Kislowski asked the court "you're talking about the person who owns the dog, a former girlfriend?"  A majority of the Appellate Division believed this question demonstrated adequate knowledge of the charges to mount a defense.

 

The dissent disagreed, finding the specifications facially inadequate and not cured by the questions posed at arraignment because the lower court never clarified the nature of the charges sufficiently to satisfy the statutory mandate.

 

Held:  The Court of Appeals adopted the reasoning of the dissent, holding that the VOP petition which alleged four dates of contact with a named person did not comport with the statutory requirements of providing the time, place and manner of the violation and was not cured by Kislowski's questions to the court posed during the arraignment.

 

CAL Observes:  Undoubtedly the sympathetic facts here impacted the outcome.  A rare win for the defense in this context alleging lack of adequate notice to have a full opportunity to mount a defense.  While decided in the VOP context, the reasoning here is potentially helpful for other facial ufficiency challenges and should be kept in mind for our Appellate Term practice