Opinion
(12707)
Argued April 27, 1994
Decision released May 31, 1994
Information charging the defendant with violation of probation, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, and tried to the court, Devlin, J.; judgment revoking the defendant's probation, from which the defendant appealed to this court. Reversed; new trial.
Catherine E. Teitell, assistant public defender, for the appellant (defendant).
Leah Hawley, assistant state's attorney, with whom, on the brief, were Donald Browne, state's attorney, and Joseph Corradino, assistant state's attorney, for the appellee (state).
The defendant appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction to serve a previously suspended one year sentence that he had received after being adjudged a youthful offender. At the conclusion of the evidence in the probation revocation hearing, the trial court stated: "I am reasonably satisfied to the standard of the probation violation that the defendant has been shown to be in violation of the conditions of his probation." The trial court applied a reasonable satisfaction standard of proof for finding a violation of probation pursuant to this court's holding in State v. Davis, 29 Conn. App. 801, 813, 618 A.2d 557 (1993). Our Supreme Court recently reversed Davis, holding that the proper standard of proof for establishing a violation of probation is a fair preponderance of the evidence. State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994). Davis was remanded to this court with direction to reverse the judgment of the trial court and to remand the case for a new probation revocation hearing. Id., 303. We now treat the present case in a similar manner and remand it for a new probation revocation hearing.
An issue that is likely to arise during the new hearing is the admissibility of a certain drug evaluation report prepared by an agency known as "Youth Evaluation Services" and furnished to the probation department. The trial court admitted the report over the defendant's objection that the state had not qualified it as a business record under the business records exception to the hearsay rule, General Statutes 52-180(a). Reliance on that statute is not necessary to admit the report as evidence in a probation revocation hearing because a court may consider any relevant, reliable and probative hearsay in such a hearing. State v. White, 169 Conn. 223, 239-40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975); State v. Scott, 31 Conn. App. 660, 666 n. 3, 626 A.2d 817 (1993); State v. Davis, supra, 29 Conn. App. 811; State v. Baxter, 19 Conn. App. 304, 320, 563 A.2d 721 (1989).
General Statutes 52-180(a) provides in pertinent part: "Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter."