| People v Dawley |
| 2012 NY Slip Op 04431 [96 AD3d 1108] |
| June 7, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Timothy J.Dawley, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered May 5, 2011, convicting defendant upon his plea of guilty of the crime of burglary inthe second degree.
Defendant waived indictment and was charged by a superior court information with onecount of burglary in the second degree. He thereafter pleaded guilty to the charge in return forentry into a judicial diversion program, the successful completion of which would allow him towithdraw his plea, plead guilty to attempted burglary in the second degree and be sentenced to aterm of probation. Defendant then entered a residential treatment facility as part of the program.Within two months, however, he was implicated as a drug dealer to other residents of the facilityand he admitted to using drugs in the facility. After a meeting of the treatment court team, atwhich defendant was represented by counsel, the team concluded that his history of failedattempts at treatment and egregious conduct at the residential facility warranted termination fromthe judicial diversion program. Defendant then requested a hearing, at which County Court heardtestimony from the clinical director of the facility and defendant. In his testimony, defendantadmitted that, in violation of his contract, he witnessed other residents of the facility using drugsbut did not report it and, while a resident of the facility, he used suboxone and heroin. Althoughdefendant denied that he had supplied drugs to other residents, County Court discredited hisdenial, found his violations of the terms of his contract to be egregious, terminated him from the[*2]program and sentenced him to a prison term of seven years,with five years of postrelease supervision.
Defendant appeals, contending that County Court improperly delegated its authority toterminate him from the judicial diversion program to the treatment team and to the prosecutor asa member of that team. He also argues that the hearing held by the court did not satisfy dueprocess. While we agree that County Court made comments prior to the termination hearing thatsuggested it was deferring to the team, the record is clear that, ultimately, the treatment teamplayed an advisory role and it was the court that finally determined, after sufficient inquiry, toterminate defendant from the program. We therefore find no basis for the claim that the courtimproperly delegated its authority to determine whether to terminate defendant from the program(see CPL 216.05 [9] [c]).
Nor did County Court fail to provide defendant with "a summary hearing consistent with dueprocess and sufficient to satisfy the court that the defendant has, in fact, violated the condition"(CPL 216.05 [9] [b]; see People vFiammegta, 14 NY3d 90, 98 [2010]). As for defendant's contention that he had acontractual right to the type of hearing authorized by CPL 410.70, he did not preserve that rightby specifically raising it before County Court. Even if we were to consider that argument, ourreview of the record of the termination hearing would reflect that the burden of proof required ina postsentencing probation revocation hearing was met (see CPL 410.70 [3]).
Finally, we reject defendant's contention that termination was an abuse of County Court'sdiscretion here (see CPL 216.05 [9] [c]). Although defendant attempts to minimize hisconduct as a single relapse, the basis for his termination was his admitted repeated use of drugsshortly after entering treatment, his multiple violations of the terms of his contract and hisegregious conduct as a supplier of illegal drugs to other residents of the treatment facility.Furthermore, the record reveals that he has a longstanding criminal history associated with hisdrug use and he has been unsuccessful in treatment on multiple prior occasions.
Peters, P.J., Mercure, Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.