MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a hearing in the District Court, the defendant, Raj Dhameja, was found in violation of the terms of his probation. The judge revoked the defendants continuance without a finding (CWOF), entered a guilty finding, and sentenced the defendant to one year in the house of correction. The defendant then filed a motion for a new trial based on newly discovered evidence, which was denied. He appeals, claiming that the probation violation proceedings violated his due process rights and that the judge considered unreliable hearsay and abused his discretion in revoking the defendants probation and in denying his motion for a new trial. We affirm.
Background. In November 2011, the defendant was charged with larceny over $250 by a single scheme, in violation of G. L. c. 266, § 30 (1). On July 3, 2014, the defendant admitted to sufficient facts, a CWOF entered, and he was placed on administrative probation until June 30, 2015. On March 24, 2015, the probation department mailed a notice of probation violation and hearing to the defendants address of record in Scituate, scheduling a hearing for April 14, 2015. The notice alleged that the defendant failed to report to his probation officer on March 12, 2014; failed to notify his probation officer of his exact address; and his whereabouts were unknown. On April 14, 2015, the defendant failed to appear for the probation violation hearing; a default warrant issued for his arrest.
On October 7, 2016, the defendant removed the default. On November 8, 2016, a probation violation hearing was held. The judge found that the defendant was in violation of the terms of his probation for (1) failing to notify the probation department of his change of address, (2) failing to report to his probation officer on March 12, 2015, (3) failing to appear at the April 2015 probation violation hearing, and (4) his whereabouts being unknown. The judge revoked the CWOF and sentenced the defendant to one year in the house of correction, with credit for time served. The same judge denied the defendants motion for a new trial. The defendant timely appealed.
Discussion. 1. Due process claims. The defendant claims that the probation violation proceedings violated his due process rights because he was not properly served, he was not given proper notice of the alleged probation violations, and the judge did not provide an adequate written statement explaining his decision. We are not persuaded.
In the probation revocation context, “[d]ue process requires that a probationer receive fair warning of conduct that may result in revocation of probation.” Commonwealth v. Riz, 90 Mass. App. Ct. 10, 13 (2016), quoting Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006). Pursuant to the order of probation conditions issued by the plea judge that the defendant signed, he was on notice that he was required to notify his probation officer of any change of residence within forty-eight hours. This he did not do.
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“[T]he adequacy of an attempt or attempts to serve notice must be determined on a case-by-case basis, and the court particularly should examine the adequacy of the attempts in light of the information possessed by the authority charged with giving notice.” Commonwealth v. Faulkner, 418 Mass. 352, 363 (1994). Here, the notice of probation violation and hearing was mailed to the defendant by regular mail to the last known address that the defendant provided.
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This form of notice complied with Rule 4 of the District/Municipal Courts Rules for Probation Violation Proceedings. Any lack of notice was “not due to any failure by the [probation department] to mail notice, but rather the defendants own neglect in not informing [his probation officer] of his change of address.” Commonwealth v. Francis, 374 Mass. 750, 754 (1978). Cf. Faulker, supra at 360-364. Moreover, the defendant was served in hand with a second notice of probation violation on October 7, 2016, the day that he removed the default.
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The defendant next claims that the judge failed to provide a written statement explaining his reasons for revoking his probation. “Due process requires a judge to issue a written statement supporting a probation revocation to help insure accurate factfinding with respect to any alleged violation and provide[ ] an adequate basis for review to determine if the decision rests on permissible grounds supported by the evidence” (quotation and citation omitted). Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 667 (2019). “This aspect of due process, however, is not an inflexible invariably mandatory requirement․ The judges statement is sufficient if it provides the probationer with the reasons for the decision, adequate for the probationer to obtain a meaningful review” (quotation omitted). Id.
Here, the judge made oral findings at the violation hearing and completed a probation violation finding and disposition form, which listed the reasons for revoking the defendants probation. Taken together, the requirements of due process were satisfied and provided an adequate basis for the defendant to receive meaningful review. Compare Commonwealth v. Bain, 93 Mass. App. Ct. 724, 724-727 (2018) (judges oral findings and completed probation violation findings and disposition form complied with due process even where “blank line, to be filled in by the judge with specific evidence relied on to support the violation finding” was left blank).
2. Finding of probation violation. The defendant next contends that the judge abused his discretion in finding that the defendant violated the terms of his probation. “A defendant on probation is subject to a number of conditions, the breach of any one of which constitutes a violation of his probation.” Commonwealth v. Durling, 407 Mass. 108, 111 (1990). “The Commonwealth must prove any ‘violation of probation by a preponderance of the evidence.’ ” Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 724 (2019), quoting Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). “A determination whether a violation of probation has occurred lies within the discretion of the hearing judge.” Bukin, supra at 519-520, citing Durling, supra at 111-112. Accordingly, we review an order revoking probation for an abuse of discretion.
“Probation enables a judge to tailor an appropriate individualized sentence for such time and upon such conditions as he or she deems proper.” Commonwealth v. Powers, 73 Mass. App. Ct. 186, 188 (2008). When the defendant agreed to a CWOF in the underlying case, he was placed on administrative probation. In addition to paying restitution, the defendant was ordered to comply with the general conditions of probation, none of which the judge struck. Thus, the defendant was under an obligation to comply with those conditions, including providing his current address to the probation department.
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See id. Moreover, the defendant signed the form and in doing so he expressly attested that he “read and [understood] the above conditions of probation and [he] agree[d] to observe them.” The judge did not abuse his discretion in finding, by a preponderance of the evidence, that the defendant did not report to his probation officer, did not report his change of address, defaulted at the first probation violation hearing, and his whereabouts were unknown.
3. Hearsay. Contrary to the defendants claim, hearsay is categorically admissible at probation violation hearings in District Court. See Rule 7 (a) of District/Municipal Courts Rules for Probation Violation Proceedings. Such hearsay may be relied up in finding a violation if the judge finds that the offered hearsay is substantially reliable. See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016); Commonwealth v. Leopold L., 96 Mass. App. Ct. 796, 803 (2020). See also Mass. G. Evid. § 1101(c)(3) (2021). Here, although the probation officer testified to alleged criminal conduct that occurred outside of Massachusetts, the judge made clear on the record that he did not rely on this evidence. Accordingly, there was no error.
4. Motion for a new trial. The defendant argues that the judge abused his discretion in denying his motion for a new trial. We review the denial of a motion for a new trial for a significant error of law or abuse of discretion. See Commonwealth v. Woods, 480 Mass. 231, 237 (2018). “To prevail on a motion for a new trial on the basis of newly discovered or newly available evidence, the defendant must meet a two-part test. He must demonstrate, first, that the evidence was previously unknown to him or not reasonably discoverable before trial and, second, that the evidence casts real doubt on the justice of the conviction” (quotation and citation omitted). Commonwealth v. DiBenedetto, 475 Mass. 429, 438 (2016).
Here, the defendant failed to produce the new evidence that he cited as the basis of his motion. Instead, the defendant relied up his own affidavit which alleged what the new evidence was and that it was produced to his probation officer. The judge was not required to accept the defendants conclusory allegations as set forth in his own affidavit. See Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015), quoting Commonwealth v. Rzepphiewski, 431 Mass. 48, 55 (2000) (“A judge is not required to accept as true the allegations in a defendants affidavit[ ] even if nothing in the record directly disputes them ․ or if the affidavit is uncontroverted” [quotation and citation omitted]). And, even if the defendants affidavit survived the first of the two-part test, nothing in the defendants papers casts doubt on the judges decision.
Order revoking probation affirmed.
Order denying motion for a new trial affirmed.
FOOTNOTES
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. The defendant alleged that his former corporate attorney provided an updated address to the probation department; however there was no evidence presented at the hearing to support this claim. The defendant also claimed that he called his probation officer and left a message that he was living in New Hampshire; however, the probation officer testified at the probation violation hearing that the defendant did not leave an address or telephone number. Finally, the record does not support the defendants claim that his probation officer could use a caller identification system to learn his telephone number.
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. The notice was not returned by the United States Postal Service to the probation department as undeliverable.
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. This notice listed additional grounds, including that he failed to appear for his probation hearing on April 14, 2015, that he engaged in criminal conduct in various States outside of Massachusetts, and that he was a wanted person in Colorado.
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. The defendant argues that the order of probation conditions did not accurately reflect his conditions of probation because the form stated the defendant could not leave Massachusetts without permission when, “in fact, he was permitted to travel extensively both in and out of the country without reporting his travel to the probation office.” However, this term applied only if the “Risk/Need or OUI Supervision” box was checked, which it was not.