| People v Pickens |
| 2007 NY Slip Op 09449 [45 AD3d 1187] |
| November 29, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jodi Pickens,Also Known as Jodi Parker, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Greene County (Pulver, Jr., J.),rendered December 19, 2006, convicting defendant upon her plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree.
Defendant was indicted for criminal sale of a controlled substance in the third degree andcriminal possession of a controlled substance in the third degree, based upon her sale of crackcocaine to an undercover police officer. Defendant subsequently pleaded guilty to attemptedcriminal sale of a controlled substance in the third degree in full satisfaction of the indictment, aswell as in satisfaction of certain outstanding charges and an ongoing investigation concerningdefendant's unauthorized use of her mother's credit card. Sentencing was adjourned for one yearwith the understanding that defendant was to complete a long-term residential drug and alcoholtreatment program. After completing this program, defendant was to be sentenced to time servedplus five years of probation. However, it was also understood that if defendant failed to completethe rehabilitation program, she may be sentenced to a prison term of up to 5½ years.
Three months after entering the rehabilitation program, defendant was discharged forviolating program rules. Based on defendant's failure to complete the rehabilitation program,[*2]County Court found her in violation of her plea agreementand sentenced her to a term of 5½ years in prison, with two years of postreleasesupervision, and ordered her to pay restitution of $848.33 based on her unauthorized use of hermother's credit card. Defendant now appeals.
Defendant initially contends that there was insufficient evidence that she violated the pleaagreement. We disagree. County Court held a hearing where evidence was presented thatdefendant had violated program rules, including, among other things, testing positive for opiatesand having beer hidden in her luggage. Therefore, we find that County Court's inquiry wassufficient to support the conclusion that defendant had failed to successfully complete thelong-term rehabilitation program and had violated the plea agreement (see People v Valencia, 3 NY3d714, 715 [2004]; People v Outley, 80 NY2d 702, 712 [1993]).
However, defendant's plea agreement, which satisfied outstanding charges and ongoinginvestigations against her, including the investigation concerning the unauthorized use of hermother's credit card, did not include the payment of restitution. As the plea agreement did notinclude restitution or the possibility that restitution might be imposed, this matter must beremitted to County Court to afford defendant the opportunity to withdraw her plea or accept theenhanced sentence. Alternatively, the court may resentence defendant as promised in the pleaagreement (see People v Nugent, 31AD3d 976, 978 [2006], lv denied 8 NY3d 925 [2007]; People v Schwickrath, 23 AD3d707, 708-709 [2005]).
Finally, as defendant validly waived her right to appeal, she is precluded from contendingthat her sentence was harsh and excessive (see People v Cross, 42 AD3d 586, 587 [2007]; People v Tedesco, 38 AD3d 1102,1103 [2007], lv denied 8 NY3d 991 [2007]).
Crew III, J.P., Spain, Carpinello and Mugglin, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofGreene County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.