| People v Dissottle |
| 2009 NY Slip Op 09999 [68 AD3d 1542] |
| December 31, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gerald L.Dissottle, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered March 17, 2008, which revoked defendant's interim probation and imposed asentence of imprisonment.
In October 2007, defendant pleaded guilty to attempted burglary in the second degree insatisfaction of a St. Lawrence County indictment. Under the plea agreement, County Courtagreed to place defendant on interim probation for one year, and defendant agreed to complete adrug treatment program. Upon successful completion of interim probation, defendant was to begranted youthful offender status and sentenced to five years of probation. If he did notsuccessfully complete interim probation, however, he was to be sentenced to a determinateprison term of between two and seven years. As part of the plea agreement, defendant waived hisright to appeal. Sentencing was initially scheduled for December 2007, but was repeatedlyadjourned. In February 2008, defendant was sentenced to one year of interim probationsupervision and admitted to the drug treatment program. A month later, he was arrested on abench warrant after deciding not to remain in the program. The court resentenced him to atwo-year period of incarceration. Defendant now appeals.
Defendant asserts that his right to be sentenced without an unreasonable delay after the entryof his plea was violated (see CPL 380.30). As the People concede, this claim is notbarred [*2]by his waiver of the right to appeal (see People vCampbell, 97 NY2d 532, 535 [2002]). However, defendant failed to preserve the issue forreview by moving to dismiss the indictment or otherwise objecting in County Court to the delay(see CPL 470.05 [2]; People v Cecere, 39 AD3d 557, 558 [2007], lvdenied 9 NY3d 873 [2007]; People v Young, 283 AD2d 597, 597 [2001], lvdenied 96 NY2d 909 [2001]; cf. People v Dixon, 295 AD2d 699, 700 [2002], lvdenied 98 NY2d 709 [2002]).
In any event, only unexcusable or unduly long delays violate the statutory directive(see CPL 380.30 [1]; People v Drake, 61 NY2d 359, 366 [1984]; People vArroyo, 22 AD3d 881, 882 [2005], lv denied 6 NY3d 773 [2006]). Here, thepreparation of defendant's statutorily-required presentence report accounts for some five weeksof the four months that elapsed between his plea and his sentencing (see CPL 390.20[1]). The remaining delay resulted almost entirely from difficulties encountered in admittingdefendant into the drug treatment program, including the unavailability of a bed, problems inobtaining information and signatures from defendant's mother, and defendant's own refusal tosign admission paperwork. Neither the reasons for this delay nor its duration of less than threemonths is unreasonable (see People v Drake, 61 NY2d at 366; People v Arroyo,22 AD3d at 882).
The record does not support defendant's claim that County Court's refusal to release himuntil a drug treatment bed became available constituted a unilateral modification of his pleaagreement; the availability of a bed was a condition of defendant's release, not of his plea, andwas expressly contemplated as such by all parties from the time of his September 2007arraignment. Nor does the record support defendant's argument that County Court's repeatedwarnings about the strictness of the drug treatment program were intended to intimidate ordiscourage him. Both the warnings and the court's decision to hold him until a bed becameavailable were reasonable given defendant's youth, his already extensive drug and criminalhistory, his previous unsuccessful drug rehabilitation experience, and the fact that he was onleave from a group home at the time he committed his offense.
Defendant also argues that County Court improperly determined that he violated theconditions of his interim probation. Defendant's waiver of the right to appeal did not include thisclaim (cf. People v Hoeltzel, 290 AD2d 587, 588 [2002]). By not objecting beforeCounty Court to either the procedure followed by the court or to its conclusion, defendant failedto preserve this issue for our review (see CPL 470.05 [2]; People v Sander, 47AD3d 1012, 1013 [2008], lv denied 10 NY3d 844 [2008]; People v Peterson, 7AD3d 882, 883 [2004]). Further, while defendant now claims that he did not leave the drugprogram and the court improperly relied upon hearsay in deciding that he had done so, he did notmake this claim when the court gave him an opportunity to do so. To the contrary, his counseleffectively admitted that defendant had left the program (see People v Perez, 35 AD3d1030, 1032 [2006], lv denied 9 NY3d 868 [2007]), arguing that his actions were justifiedby his dissatisfaction with it. When the court rejected defendant's request to permit him to enrollin a different program and proceeded to resentence him, defendant raised no further objection.The summary hearing was conducted within the court's discretion and was sufficient to permitthe conclusion that the information upon which the determination was based was "reliable andaccurate" (People v Outley, 80 NY2d 702, 712 [1993]). Defendant was afforded a fairopportunity to be heard (see People v Bove, 64 AD3d 812, 813 [2009]; People vColeman, 270 AD2d 713, 714 [2000]). The evidence is thus sufficient to support theconclusion that defendant violated the conditions of his interim probation (see People vValencia, 3 NY3d 714, 715-716 [2004]; People v Dixon, 295 AD2d at 700-701).[*3]
Mercure, J.P., Rose, Lahtinen and Malone Jr., JJ., concur.Ordered that the judgment is affirmed.