| Matter of Ferreri v Fischer |
| 2010 NY Slip Op 00042 [69 AD3d 1014] |
| January 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of John Ferreri, Respondent-Appellant, v BrianFischer, as Commissioner of Correctional Services, et al.,Appellants-Respondents. |
—[*1] John Ferreri, Wilton, respondent-appellant pro se.
Cardona, P.J. Cross appeals from a judgment of the Supreme Court (Feldstein, J.), enteredJune 2, 2008 in Franklin County, which partially granted petitioner's application, in a proceedingpursuant to CPLR article 78, to review a determination denying his application to participate inthe Comprehensive Alcohol and Substance Abuse Treatment program.
Petitioner pleaded guilty to one count of criminal possession of a forged instrument in thefirst degree and, under the terms of a plea agreement, was sentenced to a prison term of 4 to 8years. Both the sentencing minutes and the uniform sentence and commitment form indicatedthat County Court recommended that petitioner be considered for the Comprehensive Alcoholand Substance Abuse Treatment (hereinafter CASAT) program. County Court also, however,signed a separate order directing that petitioner be enrolled in the CASAT program.Subsequently, after petitioner began serving his sentence, his application for admission to theCASAT program was denied. Petitioner commenced this CPLR article 78 proceeding seeking toannul that determination, which Supreme Court granted to the extent of ordering respondents toenroll petitioner in the first phase of the CASAT program. Respondents appeal and petitionercross-appeals.[*2]
Petitioner argued before Supreme Court that respondentswere required to enroll him in the CASAT program in accordance with County Court's orderspecifically directing his enrollment in that program. We do not agree. Although a sentencingcourt is empowered to direct an individual's enrollment in the CASAT program if the individual"stands convicted of a controlled substance or marihuana offense," such was not the case here(Penal Law § 60.04 [6]; seePeople v Brown, 58 AD3d 540, 540 [2009], lv denied 12 NY3d 814 [2009]).Under these circumstances, the separate order by County Court directing petitioner's enrollmentin the CASAT program must be viewed as a nonbinding recommendation (seeCorrection Law § 71 [6]; People v Brown, 58 AD3d at 540; People vPurley, 297 AD2d 499, 501 [2002], lv denied 99 NY2d 503 [2002]; People vSass, 182 AD2d 861, 862 [1992], lv denied 80 NY2d 837 [1992]). Since respondentswere not required to enroll petitioner in the CASAT program, we need not address petitioner'sfurther claim that respondents were obliged to enroll him in all phases of that program.
Mercure, Spain and Lahtinen, JJ., concur. Ordered that the judgment is modified, on the law,without costs, by reversing so much thereof as partially granted petitioner's application seeking adirective that he be enrolled in phase one of the Comprehensive Alcohol and Substance AbuseTreatment program; petition dismissed in its entirety; and, as so modified, affirmed.