| People v Secore |
| 2013 NY Slip Op 00520 [102 AD3d 1059] |
| January 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vBrandon M. Secore, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered February 24, 2011, convicting defendant upon his plea of guiltyof the crime of forgery in the second degree.
In 2009, defendant was charged with the crimes of forgery in the second degree,grand larceny in the fourth degree and identity theft in the second degree as a result of hisunlawful use of a public assistance benefit card belonging to his estranged girlfriend. Atthe time, he was serving a term of probation upon his conviction of grand larceny in thefourth degree. In connection with the 2009 crimes, defendant waived indictment andagreed to be prosecuted by a superior court information charging him with only forgeryin the second degree.
Thereafter, defendant entered into a negotiated agreement regarding the dispositionof both the forgery charge and the violation of probation. Under its terms, he would bereceived into the judicial diversion program (hereinafter JDP) (see CPL art 216)in lieu of being sentenced to prison and, in exchange, would plead guilty to the forgerycharge as well as the violation of probation, waive his right to appeal and pay restitution.However, if he did not successfully complete the JDP, he would be sentenced to a termof imprisonment that could be as much as four years on the violation of probation andseven years on the forgery charge, which terms could run consecutively. Defendantproceeded to enter his plea of guilty, admit to the probation violations and waive his rightto appeal. In addition, he also executed a JDP contract that, among [*2]other things, set forth the conditions of his participation in adrug and alcohol treatment program. Pursuant to this contract, if defendant successfullycompleted the JDP, he would receive five years of probation on the forgery convictionand probation would be continued on the grand larceny conviction, with the potential ofone year of credit for the completion of interim probation.
Defendant participated in the JDP for approximately 11 months with varying degreesof success, but was ultimately terminated for, among other things, lying to the courtabout his employment. He waived his right to a hearing and admitted to the violations ofthe JDP contract. Thereafter, his probation was revoked and he was resentenced to1
Defendant contends that his guilty plea was not voluntary and that his terminationfrom the JDP was an abuse of discretion. As an initial matter, we do not find that theseclaims are precluded by defendant's waiver of the right to appeal. The waiver was invalidinasmuch as the record does not disclose that defendant understood that this right wasseparate and distinct from the other rights he forfeited by pleading guilty (see People v Lopez, 6 NY3d248, 256-257 [2006]; People v Cianfarani, 81 AD3d 998, 999 [2011]; People v Mosher, 79 AD3d1272, 1273 [2010], lv denied 16 NY3d 834 [2011]). Nevertheless, hischallenge to the voluntariness of his guilty plea is not preserved for our review as therecord fails to indicate that he moved to withdraw the plea or vacate the judgment ofconviction (see People vWicks, 83 AD3d 1223, 1224 [2011], lv denied 17 NY3d 810 [2011]; People v Naumowicz, 76AD3d 747, 748 [2010]; People v Abrams, 75 AD3d 927, 928 [2010], lvdenied 15 NY3d 918 [2010]). The narrow exception to the preservation requirementis not applicable inasmuch as defendant did not make any statements inconsistent withhis guilt or that call into question the voluntariness of his plea (see People vWicks, 83 AD3d at 1224; People v Abrams, 75 AD3d at 928). As fordefendant's termination from the JDP, we do not find that this was an abuse of discretion(see People v Dawley, 96AD3d 1108, 1109 [2012], lv denied 19 NY3d 1025 [2012]). Defendant hasa history of serious substance abuse problems, experienced numerous difficultiescomplying with the terms of the JDP contract over the 11-month period and freelyadmitted to violating its terms. Under these circumstances, we find no reason to disturbthe judgment of conviction.
Mercure, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.