Justice LaVecchia concluded her unanimous opinion with the following: The State did not even explain why Zundel was not available on that hearing day, or on an adjourned day, as Reyes contemplates when a factual matter, which is first presented through the production of hearsay, is disputed by a defendant. See Reyes (noting that State may seek adjournment to supplement its proofs where hearsay evidence is contested). By declining to call any witness other than Carullo, the State prevented defendant from being able to confront the quality of the evidence against him. We hold that defendant was denied a hearing that met due process requirements.
In this case, for the reasons expressed, we are constrained to conclude that the use of hearsay evidence to sustain the VOP charge against defendant was error. We reverse the judgment of the Appellate Division that affirmed defendant’s VOP charge. Chief Justice Rabner, Justice Patterson, Justice Fernandez-Vina, Justice Solomon, and Justice Timpone joined in Justice LaVecchia’s opinion.
Justice Albin filed a separate concurring opinion. Justice Albin disagrees as to the evidential standard to be applied going forward. According to Justice Albin, the default position should be the application of the Rules of Evidence. If the State seeks relaxation of the evidence rules for good cause, then the balancing test set forth in Walker would be useful for deciding whether hearsay should be allowed in a probation revocation hearing.
The majority opinion is instructive regarding how to make an effective record for the appeal of a violation of probation finding based on hearsay evidence. First, the hearsay evidence must be contested. It is unclear whether a simple hearsay objection would suffice or whether an additional proffer regarding why the evidence is unreliable is required. At a minimum, defense counsel should object to any hearsay evidence and argue that its admission prevents the defense from being able to confront the quality of the evidence against the defendant.
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