| People v Peck |
| 2011 NY Slip Op 09376 [90 AD3d 1500] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kenley Peck,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Susan C. Azzarelli of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Jeffrey R. Merrill, A.J.), renderedJanuary 8, 2008. The judgment convicted defendant, upon his plea of guilty, of burglary in thethird degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toOnondaga County Court for further proceedings in accordance with the following memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in thethird degree (Penal Law § 140.20). Pursuant to the terms of the plea agreement, enteredinto in January 2007, defendant pleaded guilty to the charge of burglary, a class D felony, andwas promised that, if he successfully completed a drug treatment program, he would be permittedto withdraw his plea to the felony and instead plead guilty to a misdemeanor with a promisedsentence of a one-year conditional discharge. If defendant was unsuccessful in the drug treatmentprogram, however, under the plea agreement he would be sentenced to a term of incarceration ofone to three years. The record establishes that the drug treatment contract included a provisionthat, in order to remain enrolled in the program, defendant could not be arrested. In January 2008,defendant appeared in County Court for sentencing on the felony based upon his terminationfrom the drug treatment program for, inter alia, his postplea arrests for other crimes. Defendantdenied having been criminally involved in the crimes giving rise to his arrests and requested anopportunity to prove his innocence. Relying heavily upon the "mere fact" of defendant's arrests(People v Outley, 80 NY2d 702, 713 [1993]), the court summarily sentenced defendant toone to three years.
Initially, we agree with defendant that, even if valid, his waiver of the right to appeal doesnot encompass his contention that the court erred in failing to conduct an inquiry to determinewhether there was a legitimate basis for defendant's termination from the drug treatment program(see People v Huggins, 45 AD3d1380 [2007], lv denied 9 NY3d 1006 [2007]; see also People v Fiammegta, 14 NY3d 90 [2010]). We furtheragree with defendant that the court erred in failing to "carry out an inquiry of sufficient depth tosatisfy itself that there was a legitimate basis" for defendant's termination from the drug treatmentprogram (Fiammegta, 14 NY3d at 98), including whether the postplea arrests were"without foundation" (Outley, 80 NY2d at 713). Because defendant served his sentenceof incarceration, the only remedy available to him is to be permitted to withdraw his [*2]plea of guilty to a felony and to plead guilty to a misdemeanor. Wetherefore hold the case, reserve decision, and remit the matter to County Court to conduct aninquiry to determine whether there was a legitimate basis for defendant's termination from thedrug treatment program, including whether defendant's postplea arrests were without foundation.Present—Peradotto, J.P., Carni, Lindley, Sconiers and Green, JJ.