| People v Cambridge |
| 2016 NY Slip Op 08373 [145 AD3d 795] |
| December 14, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dave Cambridge, Appellant. |
Seymour W. James, Jr., New York, NY (Ronald Alfano of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nancy Fitzpatrick Alcott, and Ayelet Sela of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Camacho, J., at plea; Kron, J., at sentence), rendered March 31, 2014, convicting him ofcriminal sale of a controlled substance in the third degree, upon his plea of guilty, andimposing sentence.
Ordered that the judgment is affirmed.
On December 3, 2012, the defendant pleaded guilty to criminal sale of a controlledsubstance in the third degree, a class B felony, and other crimes. The plea was entered inexchange for a promise that, upon completion of a Treatment Alternatives for SaferCommunities (hereinafter TASC) program, the defendant would be sentenced to "no jail[time]." Otherwise, he would be incarcerated for one year followed by one year ofpostrelease supervision.
The defendant absconded and did not complete the TASC program. After he wasreturned to the Supreme Court, the defendant moved, in effect, to modify the terms of his2012 plea agreement so as to condition his avoidance of imprisonment on completion ofa different program, a Mental Illness and Controlled-Substance Abuse (hereinafterMICA) program. The court denied the motion and imposed the promised sentence of oneyear imprisonment followed by one year of postrelease supervision.
Contrary to the People's contention, the defendant's purported waiver of his right toappeal was invalid. Among other things, the Supreme Court's brief oral colloquysuggested that the scope of the waiver applied only to issues concerning the legality orexcessiveness of the sentence, but not the conviction itself (see People v Maracle, 19NY3d 925 [2012]; seegenerally People v Brown, 122 AD3d 133 [2014]). Further, although the recordreflects that the defendant executed a written appeal waiver form, the transcript of theplea proceeding shows that the court never ascertained on the record whether thedefendant read the written waiver form, discussed it with counsel, or was even aware ofits contents (see People vIovino, 142 AD3d 561, 561-562 [2016]; People v Pacheco, 138 AD3d 1035, 1036 [2016];People v Brown, 122 AD3d at 145). Under the circumstances of this case, thedefendant did not knowingly, voluntarily, and intelligently waive his right to appeal(see People v Pacheco, 138 AD3d at 1036; see generally People v Bradshaw, 18 NY3d 257, 264-267[2011]).
[*2] Nevertheless, the defendant'scontentions on appeal are without merit. The defendant argues that a TASC program wasunsuitable for him and that he was unable to complete the TASC program because of amedical condition. He further argues that, after he violated the conditional plea byabsconding and getting arrested twice, the Supreme Court should have placed him in theappropriate program rather than sentence him to one year imprisonment as promised.Since he already served his one-year term of imprisonment, the defendant argues that theproper remedy on appeal is a reduction of his felony conviction to a misdemeanor, orvacatur of his felony conviction, and a sentence of time served.
Other than conclusory assertions made by defense counsel, there is no evidence thatthe TASC program was inappropriate treatment for the defendant (cf. People v Feliciano, 14AD3d 308, 310 [2005]) or that the defendant was unable to complete the TASCprogram because of a medical condition (cf. People v Jimenez, 307 AD2d 880,881 [2003]). A psychologist's report submitted by the defendant, which contained aconclusory assertion that the defendant "would quite likely benefit from MICAtreatment," was insufficient to establish that completion of a TASC program was a goalthat was beyond the defendant's capacity to achieve.
In any event, even if the record showed that the defendant stood a better chance ofcompleting a MICA program, as opposed to a TASC program, such circumstance wouldnot warrant the relief requested by the defendant on this appeal, that is, to reduce hisfelony conviction to a misdemeanor, or to vacate his felony conviction and sentence himto time served (see CPL 470.55 [2]; 220.60 [3]; People v Conceicao, 26 NY3d375, 379, 385 n [2015]; cf. People v Feliciano, 14 AD3d 308 [2005]; People vJimenez, 307 AD2d 880 [2003]). Hall, J.P., Sgroi, Maltese and Duffy, JJ.,concur.