People v O'Neill

2010 NY Slip Op 06725 [76 AD3d 1143]

September 30, 2010

Appellate Division, Third Department

As corrected through Wednesday, October 27, 2010

The People of the State of New York, Respondent, v Michael A.O'Neill, Appellant.

—[*1]Frank A. Sarat, Homer, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), renderedOctober 23, 2009, convicting defendant upon his plea of guilty of the crime of burglary in thethird degree.

Defendant, who has a serious substance abuse problem, pleaded guilty to burglary in the thirddegree in satisfaction of a two-count indictment. Under the terms of the plea agreement,defendant was to participate in the STEPS/Road to Recovery Program (hereinafter referred to asthe STEPS program) which consisted of nine months of substance abuse counseling at aresidential treatment facility, followed by three months of community residence and six monthsof intensive outpatient rehabilitation. The agreement provided that, upon successful completionof the STEPS program, defendant would be sentenced to five years of probation. It furtherprovided that if defendant failed to successfully complete the residential phase of the STEPSprogram, he would be sentenced to 21/3 to 7 years in prison. Defendant wasadmitted to the STEPS program in January 2009, but was discharged in March 2009 after herelapsed and left treatment against medical advice. Consequently, County Court sentenced him to21/3 to 7 years in prison. Defendant appeals.

Defendant asserts that County Court improperly denied him a hearing concerning hisdischarge from the STEPS program prior to sentencing him to a term of imprisonment. He hasfailed to preserve this claim due to his failure to request a hearing or move to withdraw his plea(see People v Stubbs, 75 AD3d664, 664-665 [2010]; People vBillups, 63 AD3d 750 [2009], lv [*2]denied 13NY3d 834 [2009]). In any event, as defendant admitted that he failed to complete the STEPSprogram in accordance with the terms of the plea agreement, and nothing in the record indicatesotherwise, County Court was not required to conduct a formal hearing before imposing the termof imprisonment that was agreed to if defendant failed to complete the STEPS program (see People v Forkey, 72 AD3d1209, 1210-1211 [2010]; People v Billups, 63 AD3d at 750). Defendant's remainingcontentions have been considered and are without merit. Accordingly, we decline to disturb thejudgment of conviction.

Cardona, P.J., Peters, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgmentis affirmed.