| People v Matthew NN. |
| 2017 NY Slip Op 08904 [156 AD3d 1119] |
| December 21, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Matthew NN., Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant, and appellant pro se.
Jason M. Carusone, Acting District Attorney, Lake George (Benjamin R. Smith of counsel),for respondent.
Devine, J. Appeals (1) from a judgment of the County Court of Warren County (Hall Jr., J.),rendered August 21, 2013, which sentenced defendant upon his adjudication as a youthfuloffender, and (2) by permission, from an order of said court, entered August 11, 2016, whichdenied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without ahearing.
Defendant was 16 years old when, in January 2013, he waived indictment, waived his right toappeal and pleaded guilty to a superior court information charging him with possessing anobscene sexual performance by a child. The plea agreement contemplated that he would beplaced upon interim probation for one year. If defendant successfully completed the term ofinterim probation, he would be permitted to plead guilty to a misdemeanor charge and would beadjudicated as a youthful offender and sentenced to six years of probation. If he failed to do so,he faced a potential prison term of 1
Defendant was quickly charged with violating the terms of his interim probation in numerousrespects but, in the hope of avoiding sending him to prison, efforts ensued to place him in aresidential treatment facility. Defendant apparently tired of those ongoing efforts and, despiteCounty Court urging him to continue pursuing residential treatment and warning that it would"sentence [him] to 1
We affirm. Upon his direct appeal, defendant suggests that this Court invoke its interest ofjustice jurisdiction to reverse the judgment of conviction and dismiss the underlying indictment.To that end, defendant submitted a pro se supplemental brief in which he argued that, while hemade no effort to withdraw his guilty plea, he was a high school student at the time of the offenseand he should not have been charged and punished for possessing an obscene image of a girl nearhis own age. He overlooks that his present circumstances arise from the fact that he failed tocomply with the terms of interim probation and then rebuffed efforts to undergo residentialtreatment. We are accordingly satisfied that this is not the "rare and unusual case [that] cries outfor fundamental justice beyond the confines of conventional considerations" so as to warrantreversal (People v Williams, 145AD3d 100, 107 [2016] [internal quotation marks and citations omitted]; see CPL470.15 [6] [a]).
To the extent that defendant further contends that the sentence imposed was harsh andexcessive, he may arguably advance that claim despite the presence of an appeal waiver thatreferenced a sentence of probation should he fail to successfully complete his interim probation(see People v Johnson, 14 NY3d483, 486-487 [2010]). He did receive a sentence that was contemplated by the pleaagreement should he violate interim probation, however, and "we find no extraordinarycircumstances nor any abuse of discretion warranting a reduction of the sentence in the interest ofjustice" (People v Hilder, 79 AD3d1459, 1459 [2010], lv denied 16 NY3d 798 [2011]; see People v DeMarco, 60 AD3d1107, 1109 [2009]). The judgment is therefore affirmed.
Turning to defendant's motion to set aside his sentence pursuant to CPL 440.20, CountyCourt erred in denying it based upon the procedural bar set forth in CPL 440.10 (2) (c), which"applies only to motions made pursuant to section 440.10" (People v McCants, 15 AD3d 892, 893 [2005]; see People v Povoski, 111 AD3d1350, 1351 [2013]). Defendant nonetheless failed to establish that the sentence imposed was"unauthorized, illegally imposed or otherwise invalid as a matter of law" so as to warrant anyrelief (CPL 440.20 [1]). Defendant asserted that, upon violating the terms of his interimprobation, the plea agreement called for him to receive a probation sentence of 10 years. In thatregard, defense counsel did state prior to the plea colloquy that one of his colleagues hadnegotiated the plea agreement and that he had a written plea offer from the People that included a"no prison" promise should defendant violate the terms of interim probation. Defense counsel'sconfusion made its way into the written appeal waiver executed by defendant.
County Court made it clear to defendant and defense counsel, however, that it would notmake a "no prison" commitment, was "keep[ing] [its] options open" and that defendant could "goto prison" if he did plead guilty and then violated the terms of his interim probation. Defendant[*3]confirmed that he understood this and still wanted to pleadguilty. During the plea colloquy that followed, the terms of the plea arrangement were clearlystated, and defendant acknowledged understanding that he would "go[ ] to state prison for up to 4long years" if he failed to comply with them. Defendant was again advised that he faced a prisonsentence of 1
Egan Jr., J.P., Rose, Mulvey and Rumsey, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote *:Appellate counsel advises thisCourt that defendant has served his sentence for this conviction, but remains incarcerated on anunrelated charge.