| People v McKoy |
| 2019 NY Slip Op 06543 [175 AD3d 1616] |
| September 12, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Orraine S. McKoy, Also Known as 50,Appellant. |
Lisa A. Burgess, Indian Lake, for appellant, and appellant pro se.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered December 5, 2016, convicting defendant upon his plea of guilty of the crimes ofcriminal sale of a controlled substance in the third degree, criminal possession of a controlledsubstance in the third degree and resisting arrest.
In satisfaction of two indictments charging him with various drug-related and other crimes,defendant pleaded guilty to criminal sale of a controlled substance in the third degree, criminalpossession of a controlled substance in the third degree and resisting arrest. Under the terms ofthe plea agreement, he was required to waive his right to appeal. Defendant was advised of themaximum sentences that could be imposed. The People proposed concurrent sentences of5
Initially, defendant contends that his waiver of the right to appeal is invalid. Based upon ourreview of the record, we agree. County Court engaged in a very abbreviated exchange withdefendant concerning the waiver, failed to advise him that it was separate and distinct from theother rights that he was forfeiting by pleading guilty and did not ascertain that he fullyunderstood its many ramifications (seePeople v Latifi, 171 AD3d 1351, 1351 [2019]; People v Rivera, 164 AD3d 1543, 1544 [2018]). Moreover,although defendant signed a written waiver, County Court did not confirm that he read it or thathe understood it after conferring with counsel (see People v Cook, 171 AD3d 1361, 1361 [2019]; People v Levielle, 161 AD3d1391, 1392 [2018]).
Given the invalidity of the appeal waiver, defendant's challenge to the severity of thesentence is properly before us for review (see People v Cook, 171 AD3d at 1361; People v Nealon, 166 AD3d 1225,1226 [2018]). However, we find his challenge to be unavailing. Defendant was found to be inpossession of a large quantity of cocaine after he was apprehended by police following a footchase, leading to the charges contained in the first indictment. While this indictment was pendingand defendant was out on bail, he was charged in a second indictment with additionaldrug-related crimes. Not to be overlooked, he failed to appear for sentencing, resulting in theissuance of a bench warrant. The plea agreement did not include a sentencing commitment, andthe prison terms that were ultimately imposed on the class B felony drug convictions were lessthan the statutory maximum (see Penal Law § 70.70 [2] [a] [i]) and couldhave been imposed consecutively. In view of the foregoing, we find no extraordinarycircumstances or abuse of discretion warranting a reduction of the sentence in the interest ofjustice (see People v Morrow, 163AD3d 1265, 1266 [2018]; People vWhalen, 101 AD3d 1167, 1169 [2012], lv denied 20 NY3d 1105 [2013]).
Lastly, defendant contends in his pro se supplemental brief that County Court improperlydenied his application to be considered for participation in a judicial diversion program(see CPL 216.05). Under the governing statute, "[u]pon the completion of a hearing onthe issue of whether a defendant should be offered judicial diversion, the court 'shall consider andmake findings of fact with respect to whether: (i) the defendant is an eligible defendant asdefined in [CPL 216.00 (1)]; (ii) the defendant has a history of alcohol or substance abuse ordependence; (iii) such alcohol or substance abuse or dependence is a contributing factorto the defendant's criminal behavior; (iv) the defendant's participation in judicial diversion couldeffectively address such abuse or dependence; and (v) institutional confinement of the defendantis or may not be necessary for the protection of the public" (People v Cora, 135 AD3d 987, 989 [2016], citing CPL 216.05 [3][b]). Significantly, "[c]ourts are afforded great deference in making judicial diversiondeterminations" (People v Powell,110 AD3d 1383, 1384 [2013] [internal quotation marks and citations omitted]; see People v Clarke, 155 AD3d1242, 1243 [2017], lv denied 30 NY3d 1114 [2018]).
Here, County Court conducted a hearing, obtained testimony from defendant and consideredvarious documents, including records pertaining to defendant's drug treatment at a facility in theBronx, prior to issuing its determination. The court concluded that, although defendant was aneligible defendant as defined in CPL 216.00 (1) and had a history of drug abuse, his drug abusewas not a factor contributing to his criminal behavior, as there was no evidence that he was underthe influence of drugs at the time that he committed the subject crimes. The court further foundthat defendant did not have ties to the local area and traveled there from his home in the Bronxon two occasions to sell drugs. In view of this, the court concluded that judicial diversion wouldnot necessarily address his substance abuse problem and that institutional confinement wasappropriate. Inasmuch as these findings are supported by the record, we find no abuse ofdiscretion in County Court's denial of defendant's application (see People v Clarke, 155AD3d at 1244; People v Powell, 110 AD3d at 1384).
Egan Jr., J.P., Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:County Court initially included athree-year term of postrelease supervision for each of the sentences for criminal sale of acontrolled substance in the third degree and criminal possession of a controlled substance in thethird degree, but this error was later corrected and the proper term of two years of postreleasesupervision was imposed.