People v Hill

2010 NY Slip Op 07486 [77 AD3d 518]

October 21, 2010

Appellate Division, First Department

As corrected through Wednesday, December 15, 2010

The People of the State of New York, Respondent, v MarvinHill, Appellant.

—[*1]Steven Banks, The Legal Aid Society, New York (Richard Joselson of counsel), forappellant.

Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), forrespondent.

Judgment, Supreme Court, New York County (Brenda Soloff, J., at plea; Renee A. White, J., atsentence), rendered February 3, 2009, convicting defendant of criminal possession of a controlledsubstance in the fifth and seventh degrees, and sentencing him to an aggregate term of21/3 to 7 years, unanimously reversed, as a matter of discretion in the interest of justice,and the matter remanded to Supreme Court for further proceedings in accordance with this decision.

Defendant's plea agreement provided that the felony conviction would be vacated if he successfullycompleted a drug program. In the circumstances of this case, defendant's challenge to the basis for theprogram's decision to terminate him gave rise to a factual dispute that required the court to conduct aninquiry of sufficient depth to satisfy itself that there was a legitimate basis for the program's decision (see People v Fiammegta, 14 NY3d 90[2010]). The court, which relied entirely on factual claims in the probation report that defendantexpressly challenged, did not conduct any type of factual inquiry or explain its findings. Althoughdefendant did not ask for any further inquiry and thus did not preserve this issue, we choose to review itin the interest of justice.

As the People concede, defendant is entitled to a new sentencing proceeding in any event, becausethe court misapprehended its sentencing discretion. Concur—Sweeny, J.P., Freedman, Richter,Manzanet-Daniels and RomÁn, JJ.