People v Ruddy

2010 NY Slip Op 07080 [77 AD3d 983]

October 7, 2010

Appellate Division, Third Department

As corrected through Wednesday, December 15, 2010

The People of the State of New York, Respondent, v Aaron P.Ruddy, Appellant.

—[*1]Marcel J. Lajoy, Albany, for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.

McCarthy, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered May 12, 2008, which resentenced defendant upon his plea of guilty of the crime ofburglary in the third degree.

The relevant facts are fully set forth in our prior decision in this matter (People v Ruddy, 51 AD3d 1134[2008], lv denied 12 NY3d 787 [2009]). Briefly, defendant pleaded guilty in 2005 toburglary in the third degree and was sentenced to time served plus five years of probation. Theterms of defendant's plea included his compliance with conditions imposed by the SaratogaCounty Drug Treatment Court, failing which he would be resentenced to a prison term of21/3 to 7 years. After twice violating that agreement, defendant was resentenced aspromised. Upon appeal, we found the sentence imposed to be invalid due to the People's failureto timely file a predicate felony statement, vacated the sentence and remitted the matter toCounty Court to either "permit defendant to withdraw his plea or ensure that defendant receivesthe benefit of his bargain by imposing a sentence with a minimum term of no greater than21/3 years" (id. at 1135). Upon remittal, County Court resentenceddefendant to a prison term of 2 to 4 years with a credit for "time served." Defendant now appeals,contending that he should have received credit for time [*2]spentin an inpatient rehabilitation program.^[FN*]

We affirm. Preliminarily, to the extent that defendant contends that County Court erred indenying his motion to withdraw his plea, we need note only that defendant was resentenced incompliance with the terms of this Court's remittal and that the sentence imposed affordeddefendant the benefit of his initial plea bargain (see People v McConnell, 49 NY2d 340,346 [1980]; People v Sheils, 288 AD2d 504, 505-506 [2001], lv denied 97 NY2d733 [2002]). Under such circumstances, we cannot say that County Court erred in denyingdefendant's motion to withdraw his plea.

Nor are we persuaded that defendant is entitled to a credit for the time he spent in aninpatient rehabilitation program. The case law makes clear that a defendant is not entitled to a jailtime credit for time spent on probation (see People v Gilmore, 63 AD2d 45 [1978];People ex rel. Robinson v Warden, 58 AD2d 559 [1977], lvs dismissed 42 NY2d810, 1051 [1977]; People v Johnson, 43 AD2d 878 [1974]). Further, time spent in aninpatient rehabilitation program for the purpose of receiving treatment is not the functionalequivalent of being "in custody" and, hence, is not properly included when computing a credit fortime served (see Matter of Guiseppone v Ward, 70 AD2d 731 [1979], appealdismissed 47 NY2d 1011 [1979]; compare Matter of Lawson v Drug Abuse ControlCommn., 50 AD2d 1019 [1975]). Accordingly, County Court properly concluded thatdefendant was not entitled to the requested credit.

Peters, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.

Footnote *: After filing his notice of appeal,defendant moved to set aside the sentence pursuant to CPL 440.20. County Court denied thisapplication, as well as defendant's subsequent motion for reconsideration. As defendant has notsought permission to appeal those determinations, the propriety of the denial of thoseapplications is not before us.