MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, William Marcano, appeals from a Superior Court judges finding that he violated the terms of his probation. Following a two-day final surrender hearing, the judge found the defendant violated the terms of his probation by testing positive for fentanyl and by committing new criminal offenses. The judge revoked the defendants probation and sentenced him to concurrent terms of not less than three years and not more than five years in State prison. On appeal, the defendant contends that his due process rights were violated when (1) the judge did not allow him to cross-examine witnesses and present his case prior to the probation officers sentencing recommendation, (2) the judge admitted unreliable hearsay statements, and (3) the judge admitted statements the defendant made under coercion. The defendant argues that without the hearsay evidence and his admission there would not have been sufficient evidence to find that he unlawfully possessed a firearm in violation of the terms of his probation.
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We affirm.
Discussion. 1. Standard of review. We review an order revoking probation for abuse of discretion, Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014), and to determine “whether the record discloses sufficient reliable evidence to warrant the findings by the judge that [the probationer] had violated the specified conditions of his probation.” Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000). A revocation hearing is not a criminal prosecution, requiring “the full panoply of constitutional protections.” Commonwealth v. Durling, 407 Mass. 108, 112 (1990).
2. Due process. The defendant first argues that his due process rights were violated because the judge did not allow him to cross-examine witnesses and present his case prior to the probation officer making a disposition recommendation. The defendant did not object to the probation officer giving her recommendation. Because the defendant failed to raise this issue at the hearing, it is waived. Commonwealth v. Mauricio, 477 Mass. 588, 594 (2017). We therefore review for a substantial risk of a miscarriage of justice. See Commonwealth v. Conroy, 333 Mass. 751, 757 (1956).
The defendant maintains that it was a violation of the Superior Courts procedural guidelines for probation surrender hearings for the judge to hear the probation officers disposition recommendation prior to a finding that the defendant had violated the terms of his probation. Departure from the procedural rules requiring a bifurcated hearing structure does not, by itself, mandate reversal. Here, although the judge did not enter a violation finding before hearing a dispositional recommendation from the probation officer, the record before us reflects the judges decision, that the defendant violated the terms of his probation, was in accord with evidence provided during the hearing and that the probation officers sentence recommendation did not affect the judges findings.
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See Commonwealth v. Dubowski, 58 Mass. App. Ct. 292, 297 (2003).
The defendant next argues that his due process rights were violated because the judge allowed unreliable hearsay statements into evidence at the revocation hearing. Probation revocation hearings are not subject to the strict rules of evidence, Durling, supra at 114, and hearsay evidence is admissible if it is substantially reliable. See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). “Where hearsay evidence has substantial indicia of reliability, there is good cause to admit it in evidence at a probation violation hearing even though, as is generally true of hearsay, the declarant will not be on the witness stand and subject to cross-examination regarding the hearsay statements.” Id. at 482. When determining whether the hearsay evidence is substantially reliable, a judge may consider “(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity.” Id. at 484. Not all of these criteria need be satisfied. See Commonwealth v. Patton, 458 Mass. 119, 133 (2010).
The defendant contends that it was error to allow the responding officer to provide testimony of the dispatchers radio transmission, including the details provided by a third party in a 911 call, and to allow into evidence the officers incident report that included the statements made by the 911 caller to the dispatcher. The defendant contends that the multi-level hearsay of what the 911 caller said to the dispatcher -- that three men were reported to be under a bridge doing drugs, and one dressed in gray was in possession of a gun -- was not substantially reliable and should not have been admitted as evidence at his revocation hearing. However, “this is not a case where probation revocation rested entirely on hearsay; indeed, the principal investigating officer testified at the hearing.” Commonwealth v. Leopold L., 96 Mass. App. Ct. 796, 802 (2020). The responding officer, who testified at the hearing, was able to corroborate the details from the 911 caller. He testified that, when he responded to the location indicated by the dispatch, he observed three people under the bridge, using drugs, and one of them was dressed in gray, just as the caller described. Therefore, the judge was within her discretion to conclude that the hearsay evidence was admissible since it had sufficient indicia of reliability.
Next, for the first time on appeal, the defendant contends that his due process rights were violated when the judge allowed the arresting officer to testify that the defendant admitted that he owned the gun that was found at the time of his arrest. The defendant maintains that when he made the statement he was under the influence of fentanyl and felt coerced by the manner in which the officer obtained his statement. He argues that since his statement was not made voluntarily it should not have been allowed as evidence. Even if we were to assume, without deciding, that the defendants statement admitting to ownership of the gun was not voluntary, it would still be admissible at the probation hearing since the exclusionary rule would not apply. See Commonwealth v. Simon, 57 Mass. App. Ct. 80, 90 (2003) (exclusionary rule does not render involuntary statements inadmissible during probation final surrender hearing). There was no error.
3. Sufficiency of evidence. In light of our determination that the defendants due process rights were not violated, we need not address the defendants final argument that, but for the admission of the hearsay evidence and his statement that he owned the gun, there would have been insufficient evidence to support the finding that he possessed a firearm in violation of his probation. Even so, the judges decision to revoke the defendants probation fell within her sound discretion as it was supported by sufficiently reliable evidence. See Durling, 407 Mass. at 111. The testimony of the arresting officer and the defendants failed drug test result supported a finding by a preponderance of the evidence that the defendant violated his probation. See Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995).
Order revoking probation and imposing sentence affirmed.
FOOTNOTES
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. The defendant does not contest that he was in violation of probation as a result of testing positive for fentanyl but maintains that without the firearm violation he may have received a lesser sentence.
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. Absent a showing to the contrary, a judge is presumed to have disregarded evidence irrelevant to a violation determination. Commonwealth v. MacDonald, 53 Mass. App. Ct. 156, 161 (2001).