| People v Mills |
| 2007 NY Slip Op 08130 [45 AD3d 892] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert Mills,Appellant. |
—[*1] James Sacket, District Attorney, Schoharie, for respondent.
Spain, J. Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.),rendered June 14, 2006, which revoked defendant's probation and imposed a sentence ofimprisonment.
In June 2000, defendant pleaded guilty in County Court to felony driving while intoxicated(Vehicle and Traffic Law § 1192 [3]) and was sentenced to six months in jail and fiveyears of probation subject to certain conditions, to expire June 20, 2005 (see Penal Law§ 60.01 [2] [d]; § 65.00 [3]). In April 2002, he was charged with violating certainterms and conditions of his probation, a declaration of delinquency was filed by the court(see CPL 410.30), he remained incarcerated during the pendency of those charges, and heappeared with counsel and ultimately admitted to certain violations. At sentencing, County Courtrevoked his original probationary sentence and resentenced him to probation to terminateDecember 24, 2005. As a condition, defendant was required to complete a drug treatment courtprogram, a condition later amended due to him being rejected by that program. In January 2004,defendant was charged a second time with violating conditions of his probation and a newdeclaration of delinquency was filed. In June 2004, that violation petition and declaration ofdelinquency were withdrawn without prejudice, upon defendant's consent, with theunderstanding that his probation would be again extended to June 23, 2006, i.e., by the period ofthe pendency of the January 2004 charges, and a modified order reflecting that extension wasissued.[*2]
In March 2005, defendant was charged—for thethird time—with violating the conditions of his probation and a third declaration ofdelinquency was filed, based upon defendant's March 16, 2005 arrest and incarceration foraggravated unlicensed operation of a motor vehicle in the second degree in Schenectady County,and his termination from the Schenectady County drug treatment court program. Defendantremained incarcerated on that criminal charge in the Schenectady County Jail, and was firstproduced in County Court in Schoharie County on September 7, 2005 to answer charges for histhird probation violation. After several adjournments and settlement conferences, defendantappeared with counsel on December 14, 2005 and, pursuant to a settlement agreement, executeda comprehensive written waiver of appeal and admitted that he violated certain conditions of hisprobation. At subsequent appearances for resentencing, defendant raised various claims regardingthe prior extensions of the period of his probation and the proper expiration dates of his terms ofprobation; he ultimately moved pro se to dismiss the third violation petition and to terminate hisprobation. After lengthy oral argument over several appearances, County Court denied themotion in a detailed written decision. County Court then revoked defendant's probation andresentenced him, in accordance with the settlement agreement, to a prison term of1
Defendant contends on appeal that the District Attorney and Probation Department failed asrequired by CPL 410.30 to "promptly" make arrangements for his appearance in County Court,Schoharie County—while he was incarcerated in Schenectady County Jail—toaddress the March 2005 (the third) declaration of delinquency. He also argues that, previously,the court had impermissibly extended his period of probation when he was resentenced followingthe first and second declarations of delinquency; he urges that his term of probation shouldcorrectly have expired August 7, 2005 and, thus, he contends that he was no longer subject toprobation when first produced on September 7, 2005 on the third declaration of delinquency.
To begin, defendant never timely appealed from the judgments entered in 2000 upon hisoriginal guilty plea and sentence, or upon his subsequent extensions of probation in 2002 or 2004(see Penal Law § 60.01 [2] [b] [a revocable sentence of probation is a "finaljudgment of conviction"]). Thus, we will not address defendant's contentions regardingjudgments which are not before us.
Secondly, defendant never raised any of these contentions prior to his December 2005admission to violating the conditions of his probation underlying the third (2005) declaration ofdelinquency, and waiving all appeal rights. Under settled law, a claim that a defendant wasdenied a prompt hearing pursuant to CPL 410.30 on the violation of probation petition must beraised at the probation violation hearing in order to be preserved for appellate review (seePeople v Douglas, 94 NY2d 807, 808 [1999]; People v Williams, 19 AD3d 868, 869 [2005]). Since defendant didnot raise the issue of due diligence until after the hearing, at which he admitted the charges, theissue of timeliness is unpreserved for our review (cf. People v Horvath, 37 AD3d 33, 36 [2006]).
Moreover, defendant's admission to the charges and appeal waiver foreclose these claims. Inour view, defendant's admission and appeal waiver in this probation violationproceeding[FN*]should have no less effect than a guilty plea and appeal waiver, which in criminal [*3]prosecutions extinguish comparable claims to statutory speedy trialviolations (see People v Friscia, 51 NY2d 845, 847 [1980]; People v Hernandez, 21 AD3d1214, 1215 [2005], lv denied 5 NY3d 883 [2005]) or statute of limitations defenses(see People v Parilla, 8 NY3d654, 659 [2007]). We reject defendant's claim that due diligence claims under CPL 410.30are of constitutional dimension that "go to the very heart of the process" (People vHansen, 95 NY2d 227, 230 [2000]) or that his other arguments fall under the rubric ofsentence legality (see People v Callahan, 80 NY2d 273, 280 [1992]). Thus, in addition tonot being preserved, defendant's challenges are foreclosed by his admission to violating hisprobation and his unqualified appeal waiver, neither of which are argued to have been other thanvoluntary, knowing and intelligent (seePeople v Lopez, 6 NY3d 248, 255 [2006]). As defendant never requested to withdrawhis admission to the violation petition, he remains bound by it.
In any event, defendant was in fact still on probation—under the original sentence ofprobation—when he was charged in March 2005 with the third violation of probation.Accordingly, the declaration of delinquency on the third violation tolled the period of probation(see Penal Law § 65.15 [2]), which did not expire while those charges werepending until the date of the final determination (see People v Shabazz, 12 AD3d 782, 783 [2004]; see alsoPeople v Douglas, 94 NY2d at 808; People v Haynes, 34 AD3d 1128, 1129 [2006]). Thus, there is nomerit to defendant's claim that the court lacked authority to accept his admission to the thirdviolation petition or to impose a sentence thereon. Further, were we to address the issue, wewould conclude that the delay in producing defendant in Schoharie County Court was primarilyattributable to defendant's incarceration in Schenectady County, that it was not unduly lengthyunder the circumstances, and that defendant suffered no demonstrable prejudice as a result(cf. People v Horvath, 37 AD3d at 37).
Defendant's final averment on appeal is that he received ineffective assistance of counsel inbringing his pro se motion to dismiss the third violation petition. To the contrary,counsel—who was not removed or substituted as counsel of record—attempted(with County Court and the District Attorney's assistance) to painstakingly and patiently addresson the record defendant's claims and concerns, and to answer his questions regarding thesequence of events and recalculations of the expiration date of his term of probation. Counsel hadno duty to independently pursue defendant's pro se motion of which he had little notice oropportunity to assist in preparing (see People v Betsch, 286 AD2d 887 [2001]); counseldid not impermissibly take an adverse position (see People v Milazo, 33 AD3d 1060, 1061 [2006], lvdenied 8 NY3d 883 [2007]; People v Caple, 279 AD2d 635, 636 [2001], lvdenied 96 NY2d 798 [2001]; cf. People v Coleman, 294 AD2d 843, 844 [2002]) but,rather, attempted to support that which counsel believed was arguable, and to explain that whichhe perceived defendant misapprehended. Defendant's remaining claims also lack merit.
Mercure, J.P., Crew III, Peters and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Notably, probation violationproceedings are not considered a stage of criminal prosecution and speedy trial guarantees do notapply (see People v Horvath, 37 AD3d at 37).