| People v Mason |
| 2009 NY Slip Op 07692 [66 AD3d 1225] |
| October 29, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v StaceyMason, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Shannon K. Corbitt of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered September 10, 2007, convicting defendant upon her plea of guilty of the crime ofcriminal nuisance in the first degree.
Defendant was arrested in her apartment in the City of Albany for, among other things,knowingly conducting or maintaining a premises where people had gathered for the purpose ofengaging in the unlawful sale of controlled substances in return for receiving a quantity of crackcocaine. An Albany County grand jury returned a six-count indictment against defendant and hercodefendants in which defendant was charged with two counts—criminal nuisance in thefirst degree and endangering the welfare of a child. In June 2005, defendant entered into a pleaagreement that provided that she would plead guilty, as a predicate offender, to criminalnuisance in the first degree and that her sentencing would be deferred pending her participationin the Albany County Drug Treatment Court program. Furthermore, if defendant successfullycompleted the drug court program, she would be allowed to withdraw her plea of guilty to afelony, plead guilty to a misdemeanor and receive a sentence of time served, a one-yearconditional discharge, surcharge and victim fee, so long as she cooperated against hercodefendants and waived certain other rights, including her right to appeal. It was also agreedthat, if defendant breached the plea agreement, she would be sentenced to a prison term of 2 to 4[*2]years. Defendant's guilty plea was accepted by County Courtand arrangements were made for her to commence participation in the drug court program.
On May 8, 2006, defendant failed to appear in drug court and a bench warrant was issued forher arrest. Following her subsequent arrest on unrelated misdemeanor charges in MontgomeryCounty, defendant was also arrested on the outstanding bench warrant and returned to AlbanyCounty. Defendant appeared in drug court on July 19, 2006 and, at a subsequent appearance inthat court, the matter was adjourned in order to afford defendant an opportunity to getreestablished in the drug court program. However, based upon defendant's arrests in April 2007in the Town of Colonie, Albany County and in July 2007 in Ulster County, County Court held adrug court participation agreement violation hearing and found that the People had sustainedtheir burden of establishing defendant's violation of the agreement. Defendant was thereaftersentenced as a predicate offender, in accordance with her plea agreement, to a prison term of 2 to4 years. Defendant now appeals.
Defendant's contention that she did not knowingly, voluntarily and intelligently waive herright to appeal her underlying conviction or sentence is unpreserved for our review as she failedto move to withdraw her guilty plea or to vacate the judgment of conviction (see People v Cintron, 62 AD3d1157, 1158 [2009], lv denied 13 NY3d 742 [2009]; People v Terry, 55 AD3d 1149,1150 [2008], lv denied 11 NY3d 931 [2009]; People v Scott, 31 AD3d 816, 817 [2006]). Furthermore, thenarrow exception to the preservation rule does not apply here, as defendant did not make anystatement during the plea that cast doubt on her guilt or otherwise called into question thevoluntariness of her plea (see People vBrennan, 62 AD3d 1167, 1168 [2009]). Nor, based on our review of the record, do wefind any basis to exercise our interest of justice jurisdiction.
We discern no error in County Court's determination that the People met their burden ofproving, by a preponderance of the evidence, defendant's violation of the conditions of her drugcourt participation agreement (see CPL 410.70 [3]; People v Oehler, 52 AD3d 955, 956 [2008], lv denied 11NY3d 792 [2008]). The testimony of defendant's drug court case manager established thatdefendant failed to attend a scheduled drug court appearance in May 2006, resulting in theissuance of a bench warrant for her arrest. Defendant did not return to drug court until July 2006,when the bench warrant was executed upon her arrest on unrelated charges in another county.The testimony further established that, even after being given a second chance at participation indrug court, defendant was again arrested in April 2007.[FN*]
In addition, according to the testimony of two correction officers, defendant was arrested inJuly 2007 for contraband violations after allegedly attempting to smuggle narcotics into EasternCorrectional Facility in Ulster County. The correction officers testified that defendant admittedto having quantities of heroin, cocaine, crack cocaine and marihuana on her person, in violationof her participation agreement. Moreover, defendant's failure to obtain prior permission fromdrug court to travel outside the jurisdiction (Albany County) constituted a violation of theparticipation agreement.
Defendant did not preserve her argument that she participated in the drug court program fora period exceeding the 18-month maximum set forth in the agreement (even discounting theperiods of time in which defendant was allegedly in violation of the agreement) before beingcharged with violating such agreement, as she never objected to her continued participation inthat program or raised this argument during the violation hearing or at her resentencing(see CPL 470.05 [2]; People v Iannelli, 69 NY2d 684, 685 [1986], certdenied 482 US 914 [1987]; Peoplev Sander, 47 AD3d 1012, 1013 [2008], lv denied 10 NY3d 844 [2008]). Thus,we agree with County Court's conclusion that the People met their burden of proving defendant'sviolation of the participation agreement (see People v Cannon, 2 AD3d 898, 899 [2003], lv denied 2NY3d 738 [2004]; People v Brothers, 268 AD2d 607, 608 [2000]) and that defendantshould be resentenced accordingly.
Defendant's challenge to the effectiveness of counsel " 'is precluded by [her] valid appealwaiver except insofar as the alleged ineffectiveness could be construed to have impacted uponthe voluntariness of [her] plea and, to that extent, the absence of a motion to withdraw the plea orvacate the judgment of conviction renders the matter unpreserved' " (People v Jeske, 55 AD3d 1057,1058 [2008], lv denied 11 NY3d 898 [2008], quoting People v Crudup, 45 AD3d 1111, 1111 [2007]; see People v Lopez, 6 NY3d 248,255 [2006]; People v Phillips, 41AD3d 969, 970 [2007]). Similarly, defendant's valid waiver of her right to appeal precludesher from arguing that her sentence was harsh and excessive (see People v Lopez, 6NY3d at 255-256; People v Page,57 AD3d 1166, 1166-1167 [2008]; People v Scott, 31 AD3d at 817).
Defendant's remaining contentions, including those raised in her pro se supplemental brief,have been reviewed and found to be without merit.
Cardona, P.J., Peters, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: While these charges stemmedfrom conduct predating defendant's participation in drug court, she failed to notify drug court ofthis police contact, as required by the participation agreement.