| People v Brown |
| 2009 NY Slip Op 00312 [58 AD3d 540] |
| January 22, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rodney Brown, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered August 7, 2007,convicting defendant, upon his plea of guilty, of grand larceny in the fourth degree, andsentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
Defendant claims that his guilty plea was involuntary because the court allegedly promisedto order him enrolled in the comprehensive alcohol and substance abuse treatment (CASAT)program, a promise that went unfulfilled since court-mandated CASAT is only available forpersons convicted of drug offenses (Penal Law § 60.04 [6]). However, while defendantmoved to withdraw his plea, he did so on different grounds from those he advances on appeal,and while he raised his present claim in a CPL article 440 motion to vacate the judgment, thecourt denied that motion, and this Court denied leave to appeal. Accordingly, this issue isunpreserved (see People v Lopez, 71 NY2d 662, 665 [1988]), and we decline to review itin the interest of justice. As an alternative holding, we also reject it on the merits. The recorddoes not establish that a guarantee of CASAT was part of the court's sentence promise. Instead,the record reflects that, as defendant specifically acknowledged, the only promise upon whichthe plea was actually conditioned was a sentence of 2 to 4 years, that defense counseladditionally asked the court to recommend CASAT, and that defendant's plea was not induced bythe court's promise to "place" him in CASAT. Furthermore, the fact that, at sentencing, the courtpurported to direct defendant's enrollment in CASAT did not render the sentence illegal orentitle defendant to withdraw his plea. The purported direction was essentially arecommendation made [*2]by the court to the Department ofCorrectional Services, which chose, instead, to place defendant in a different therapeuticprogram.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Andrias,Nardelli, Catterson and Moskowitz, JJ.