| People v Dillon |
| 2009 NY Slip Op 03063 [61 AD3d 1221] |
| April 23, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kelly A.Dillon, Appellant. |
—[*1] Julie A. Garcia, District Attorney, Elizabethtown, for respondent.
Peters, J.P. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered June 3, 2008, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fourth degree.
Defendant was arrested after a substantial amount of cocaine was discovered in his car. Helater waived indictment and agreed to be prosecuted by a superior court information. Pursuant tothe terms of a plea agreement, defendant pleaded guilty to criminal possession of a controlledsubstance in the fourth degree and waived his right to appeal. He was thereafter sentenced to aprison term of five years and two years of postrelease supervision. Defendant appeals and weaffirm.
Defendant argues that his constitutional rights were violated by the Essex County DrugCourt's refusal to accept him into the program. As Drug Court is a "procedure[ ] utilized indetermining and imposing sentence" and has no impact upon the legality of the sentence itself,defendant's waiver of the right to appeal precludes our review of his argument that he shouldhave been accepted into the program (People v Callahan, 80 NY2d 273, 281 [1992]; see People v Hooten, 34 AD3d941 [2006]). Additionally, the issue is unpreserved due to defendant's failure to raise itbefore County Court (see CPL 470.05 [2]; People v Iannelli, 69 NY2d 684, 685[1986], cert denied 482 US 914 [1987]; People v Sander, 47 AD3d 1012, 1013 [2008], lv denied10 NY3d 844 [2008]).[*2]
We lastly note that defendant's challenge to the severityof the sentence imposed is precluded by his appeal waiver (see People v Lopez, 6 NY3d 248, 255-256 [2006]; People v Hyson, 56 AD3d 890,892 [2008], lv denied 12 NY3d 758 [2009]).
Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is affirmed.