| People v McDevitt |
| 2012 NY Slip Op 05763 [97 AD3d 1039] |
| July 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v P. BrentMcDevitt, Also Known as Peter B. McDevitt, Appellant. (And Another RelatedAction.) |
—[*1] Nicholas E. Tishler, Special Prosecutor, Ballston Spa, for respondent.
Garry, J. Appeals from a judgment of the County Court of Warren County (Hall Jr., J.),rendered January 5, 2011, which, among other things, determined that defendant violated theterms of a plea agreement and imposed sentences of imprisonment.
In July 2006, defendant resolved multiple charges then pending in both Saratoga and WarrenCounties by plea agreements. In Warren County, he pleaded guilty to one count of felony drivingwhile intoxicated (hereinafter DWI) and one count of aggravated unlicensed operation of a motorvehicle. Sentencing was adjourned for one year and he was placed on interim probation withconditions, including participation in the Warren County treatment court, with the furtheragreement that he would be sentenced to a five-year period of probation if he successfullycomplied with the conditions, but could be sentenced to incarceration if he failed to comply. InSaratoga County, defendant pleaded guilty to one count of felony DWI and was sentenced to timeserved and a five-year period of probationary supervision to run concurrently with the WarrenCounty probation. Defendant subsequently completed treatment court; he was sentenced inWarren County to a five-year term of probation, and supervision of the remainder of [*2]his Saratoga County sentence was transferred to Warren County.
Thereafter, defendant allegedly violated his probation on multiple occasions, including beingarrested for several additional crimes as well as testing positive for controlled substances. In June2010, County Court adjourned a probation revocation hearing based on defendant's agreement toparticipate in a 28-day evaluation at an inpatient substance abuse treatment facility. Defendantthereafter left the facility before completing the program and went to Florida. Upon his return toNew York, defendant appeared in County Court in August 2010 and, pursuant to a new pleaagreement with the People, admitted that he had violated his probation by testing positive forcontrolled substances, waived his rights to a probation revocation hearing and an appeal, andagreed that after serving 60 days in jail he would enter another drug treatment program calledDay Top. Pursuant to this agreement, County Court adjourned defendant's sentencing for theadmitted probation violations until May 2011 and advised defendant that if he successfullycompleted the Day Top program, his probation could be continued, but if he did not do well atDay Top, left the program, tested positive for controlled substances, obtained drugs or alcohol orwas rearrested, he could be sentenced to consecutive prison terms on his Saratoga County andWarren County convictions.
Thereafter, defendant was discharged from Day Top for violating its policies. At anappearance in December 2010, County Court found that defendant had violated the conditions ofthe August 2010 agreement, denied his motion for a hearing on this issue, denied his motion towithdraw his plea and sentenced him to consecutive prison terms of 1
Defendant now contends that County Court should have conducted a probation revocationhearing pursuant to CPL article 410 before sentencing him to incarceration. Even if thiscontention had been preserved, we would have found it without merit. The statutoryrequirements—that defendant be found to have violated his probation and allowed anopportunity to be heard—were fully satisfied by the August 2010 proceeding, in whichdefendant admitted to violating the terms of his probation and waived his right to a revocationhearing (see CPL 410.70 [1]). Thus, the issue in December 2010 was not whetherdefendant had committed a new probation violation, but instead merely whether he had failed toadhere to the conditions of his plea agreement by being discharged from Day Top—and thecondition that he successfully complete this drug treatment program prior to sentencing wasclearly within the trial court's authority (see CPL 400.10 [4]; People v Avery, 85NY2d 503, 507-508 [1995]). Nor was County Court's authority altered by the fact that defendantwas on probation in August 2010 (see People v Knowles, 244 AD2d 425, 426 [1997];People v Small, 192 AD2d 889, 889 [1993]; compare People v Walker, 38 AD3d 1103, 1104 [2007]).
We further reject defendant's argument that due process required an evidentiary hearing toestablish that defendant had violated the plea agreement. In this circumstance, a full hearing isnot required, but the sentencing court must afford the defendant an opportunity to respond andmust conduct an inquiry of sufficient depth to "assure itself that the information upon which itbases the sentence is reliable and accurate" (People v Outley, 80 NY2d 702, 712 [1993];see People v French, 72 AD3d1397, 1398 [2010], lv denied 15 NY3d 804 [2010]; People v Coleman, 270AD2d 713, 714 [2000]). Where, as here, a defendant agrees to complete a drug treatmentprogram as an alternative to incarceration and is discharged from the program for [*3]misconduct, the court must determine whether there was alegitimate basis for the discharge, and the record must reveal this inquiry and the basis for thecourt's conclusions (see People vFiammegta, 14 NY3d 90, 98 [2010]; People v Valencia, 3 NY3d 714, 715 [2004]). County Court metthese requirements by detailing the charges that led to defendant's discharge from Day Top,describing the inquiry it had undertaken into the basis for the charges, and introducing intoevidence reports from program supervisors explaining defendant's misconduct. Defendant and hiscounsel were given an opportunity to respond, and defendant declined comment; his counselargued that a recent change in defendant's representation necessitated additional time forinvestigation and repeated the request for a hearing.[FN1]Neither defendant nor his counsel denied that he had been discharged from the program,challenged the accuracy of the court's account of the reasons for his discharge nor identified anyexplanatory circumstances or factual issues requiring additional investigation or a hearing. Therecord thus provides no basis upon which this Court could conclude that the court's inquiry wasinsufficient (compare People v Fiammegta, 14 NY3d at 98-99; People vValencia, 3 NY3d at 715-716; People v Hill, 77 AD3d 518, 518 [2010]; see People v Dissottle, 68 AD3d1542, 1544 [2009], lv denied 14 NY3d 799 [2010]).
Finally, defendant contends that the conditions of his August 2010 plea agreement were toovague to inform him of the conduct that would result in his discharge from Day Top. Notably,defendant made no claim during the December 2010 proceeding that his discharge resulted fromany failure to understand the program's rules or the conditions of his plea. The record of theAugust 2010 proceedings fully reveals that the agreement was conditioned on defendant'ssuccessful completion of the Day Top program and that defendant understood that his failure todo so could result in consecutive prison sentences.[FN2]Accordingly, we find that defendant's due process rights were not violated and County Courtproperly sentenced him in accordance with the August 2010 plea agreement (compare Peoplev Knowles, 244 AD2d at 426).
Peters, P.J., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: County Court found that defensecounsel had sufficient notice of the charges to conduct an investigation before the December2010 proceeding. Further, defendant had personal knowledge of the circumstances surroundinghis discharge and should have been able to advise his new counsel of any factual disputes orother issues requiring further investigation.
Footnote 2: Among other things, the appealwaiver executed by defendant and counsel specifically provides that defendant could besentenced to consecutive prison sentences "if [he] fail[ed] to complete Day Top."