| People v Cooney |
| 2014 NY Slip Op 06019 [120 AD3d 1445] |
| September 4, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEllen Cooney, Appellant. |
Richard V. Manning, Parishville, for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Lynch, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered August 9, 2012, convicting defendant upon her plea of guilty ofthe crime of attempted burglary in the second degree.
In full satisfaction of several pending charges, defendant pleaded guilty to a superiorcourt information charging her with attempted burglary in the second degree, with theunderstanding that, if she completed a judicial diversion program (hereinafter JDP)(see CPL 216.05), she would be sentenced to five years of probation. CountyCourt placed defendant on interim probation and informed her that if she wasunsuccessful in the JDP, she would be sentenced to the maximum sentence of sevenyears in prison plus five years of postrelease supervision. Approximately one year later,defendant was arrested. She waived her right to a hearing and admitted to committingcriminal trespass in the second degree, and was discharged from the JDP. She was thensentenced, as a second violent felony offender, to 6
Initially, we note that defendant failed to preserve, by appropriate postallocutionmotion, her argument that she was denied due process because she was not representedby counsel during JDP status conferences (see CPL 216.05 [8]) and at themeeting of the treatment court team in [*2]which it wasconcluded that she should be terminated from the JDP. Moreover, the record reveals thatin her JDP contract—which was signed by defendant and her counsel anddiscussed in open court—defendant waived the right to have her attorney presentduring any JDP sanction proceeding except termination, and counsel was present andactively participated in the termination hearing. Under these circumstances, were thisissue properly before us, we would find that defendant received the process she was due(see CPL 216.05 [9] [b]; People v Dawley, 96 AD3d 1108, 1109 [2012], lvdenied 19 NY3d 1025 [2012]; see also People v Fiammegta, 14 NY3d 90, 96-98[2010]).
Furthermore, County Court did not abuse its discretion in terminating her from theJDP, and her sentence was not harsh or excessive. Defendant was presumptivelyineligible for the JDP, given that she was currently charged with, and had previouslybeen convicted of, a violent felony offense (see CPL 216.00 [1]). Although thePeople consented to her participation in the JDP, defendant was arrested for conduct thatbore great similarity to the circumstances surrounding her prior crimes. Givendefendant's extensive criminal history relating to her drug use, which resulted in a priorsix-year prison sentence, as well as the similar nature of her latest crime, County Courtdid not abuse its discretion in either terminating her from the JDP or imposing theconcededly lawful 6
McCarthy, J.P., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.