| People v Love |
| 2016 NY Slip Op 02484 [137 AD3d 1486] |
| March 31, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoshua J. Love, Appellant. |
John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered October 21, 2013, convicting defendant upon his plea of guiltyof the crime of rape in the third degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to rape in thethird degree and waived his right to appeal. Pursuant to the terms of the plea agreement,County Court placed defendant on interim probation for one year and promised toimpose a sentence of probation if he successfully completed a substance abuse treatmentprogram. Defendant was informed by County Court that his failure to complete thesubstance abuse treatment program could result in a sentence of imprisonment of up tofour years. Defendant was discharged from the treatment program for allegedlyfraternizing with a female patient despite previously being directed not to be alone withfemale patients. County Court denied defense counsel's request for a hearing to disputethe basis for defendant's discharge and, finding that it was no longer bound by the pleaagreement, sentenced defendant to a prison term of 3
We are unpersuaded by defendant's contention that the appeal waiver is invalid. Therecord reflects that County Court explained, and defendant acknowledged that heunderstood, the separate and distinct nature of the waiver of the right to appeal prior toexecuting a detailed written waiver in open court. As such, defendant knowingly,voluntarily and intelligently waived his right to appeal (see People v Bethea, 133AD3d 1033, 1033 [2015]; People v Beblowski, 131 AD3d 1303, 1304 [2015], lvdenied 26 NY3d 1085 [2015]). Defendant's challenge to the factual sufficiency ofthe plea allocution is precluded by that valid appeal waiver (see People vJackson, [*2]128 AD3d 1279, 1280 [2015], lvdenied 26 NY3d 930 [2015]; People v Bryant, 128 AD3d 1223, 1224 [2015], lvdenied 26 NY3d 926 [2015]). Defendant's further contention that the plea was notvoluntary survives the appeal waiver, but is nevertheless unpreserved as the record doesnot reflect that he made any postallocution motion to withdraw his plea (see People v Kormos, 126AD3d 1039, 1040 [2015]).
Next, defendant contends that his due process rights were violated by the failure ofCounty Court to conduct a hearing prior to imposing the enhanced sentence. Initially, wenote that defendant's waiver of appeal does not preclude our review of this issue (see People v Dissottle, 68AD3d 1542, 1544 [2009], lv denied 14 NY3d 799 [2010]). Turning to themerits, "it is not practical to require an evidentiary hearing every time a defendantdisputes discharge from a drug treatment program for reasons unrelated to makingsatisfactory progress in treatment" (People v Fiammegta, 14 NY3d 90, 98 [2010]). However,"when a program discharges a defendant for misconduct, the court must carry out aninquiry of sufficient depth to satisfy itself that there was a legitimate basis for theprogram's decision, and must explain, on the record, the nature of its inquiry, itsconclusions, and the basis for them" (id. at 98; see People v Valencia, 3 NY3d714, 715 [2004]). Here, defendant denied any misconduct and alleged, among otherthings, that he was not deliberately fraternizing with a female patient and that she hadfollowed him into a room he was cleaning. County Court referenced a "dischargesummary" in determining that no further inquiry was required and, while it is somewhathazy as to whether the trial court reviewed that document, there is no question that thePeople and defense counsel did so prior to sentencing. Our review of the dischargesummary discloses that it in no way addresses defendant's assertion that the violation ofprogram rules on his part was inadvertent and, as such, we cannot conclude that CountyCourt made a sufficient inquiry into the reasons for his discharge (see People vFiammegta, 14 NY3d at 98-99; People v Hill, 77 AD3d 518, 518 [2010]; cf. People v McDevitt, 97AD3d 1039, 1041 [2012], lv denied 20 NY3d 987 [2012]). Thus, thesentence must be vacated and the matter remitted for resentencing.
Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment ismodified, on the law and the facts, by vacating the sentence imposed; matter remitted tothe County Court of St. Lawrence County for further proceedings not inconsistent withthis Court's decision; and, as so modified, affirmed.