| People v Forkey |
| 2010 NY Slip Op 02880 [72 AD3d 1209] |
| April 8, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jeffrey J.Forkey, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered April 9, 2008, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a forged instrument in the second degree and burglary in the third degree (threecounts).
In May 2007, defendant was charged with criminal possession of a forged instrument in thesecond degree and criminal possession of a controlled substance in the seventh degree based onhis conduct in submitting a forged prescription for Xanax tablets. A few months later, he wascharged with three counts of burglary in the second degree stemming from allegations that heentered the homes of three neighbors with the intent to steal prescription medications. Afterwaiving indictment and consenting to be prosecuted by superior court information, defendantpleaded guilty to criminal possession of a forged instrument in the second degree and threecounts of burglary in the third degree and waived his right to appeal in exchange for arecommended sentence of six months in jail to be followed by five years of probation. The termsof the plea included defendant's acceptance into the Clinton County Drug Court. County Courtadvised defendant that, in the event that he was not accepted into the drug court program, hecould be sentenced "to any sentence set forth under the law."
Thereafter, defendant entered an inpatient treatment center but was discharged due to [*2]noncompliance. As a result, his application for admission into thedrug court program was rejected. After finding that defendant violated the terms of the pleaagreement, County Court sentenced him to concurrent terms of six months in jail for the criminalpossession of a forged instrument conviction and 2 to 6 years each in prison on two of theburglary convictions, to run consecutively to a prison term of 2 to 6 years on the third burglaryconviction. Defendant now appeals.
Defendant's assertion that he was denied his right to due process when County Court failedto hold a hearing to determine whether he had violated the conditions of his plea agreement isunpreserved, since he neither requested a hearing nor moved to withdraw his plea on this ground(see People v Delayo, 52 AD3d1114, 1115 [2008], lv denied 11 NY3d 787 [2008]; People v Kitchens, 46 AD3d 577,578 [2007], lv denied 10 NY3d 767 [2008]). In any event, defendant was provided anopportunity to be heard and admitted to a number of the circumstances surrounding the rejectionof his drug court application, including his consumption of alcohol at a bar while on acommunity walk and his failure to meet certain expectations of the program. Under thesecircumstances, County Court's inquiry was sufficient to determine that defendant violated theplea agreement and no formal hearing was required (see People v Saucier, 69 AD3d 1125, 1126 [2010]; People vKitchens, 46 AD3d at 578).
Defendant also claims that his sentence is harsh and excessive. As the People concede,defendant's appeal waiver does not encompass his challenge to the severity of the sentencebecause, at the time of the plea and execution of the waiver, County Court failed to inform himof the range of sentencing options available in the event that he violated the terms of the pleaagreement, including the maximum sentence he could receive and the possibility of consecutivesentences (see People v Tesar, 65AD3d 716, 717 [2009]; People v Shea, 254 AD2d 512, 513 [1998]).
Upon our review of defendant's sentence, we agree that it is unduly harsh. While defendant'sadmitted prescription medication dependency does not lessen the seriousness of the crimes thathe committed, certain factors militate in favor of a more lenient sentence, including the fact thathe has no prior criminal record, expressed full responsibility and remorse for his actions, and hadpaid restitution to one of the victims by the time of sentencing. Furthermore, impact statementsfrom the victims of the burglaries uniformly recommended substantial drug counseling andrehabilitation. Considering these factors, the rehabilitative objective of a penal sanction, and thefailure to inform defendant of all the pertinent sentencing considerations at the time of the plea,we are persuaded to exercise our interest of justice jurisdiction and modify the sentence bydirecting that the sentences for each crime run concurrently (see CPL 470.15 [6] [b];People v Tesar, 65 AD3d at 717-718).
Malone Jr., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by directing that the sentencesimposed upon defendant run concurrently with one another, and, as so modified, affirmed.