| People v Murdock |
| 2019 NY Slip Op 06801 [175 AD3d 1560] |
| September 25, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Terence Murdock, Appellant. |
Steven S. Siegel, PLLC, Garden City, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Jacqueline Rosenblumof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (William J.O'Brien, J.), rendered June 21, 2017, convicting him of driving while intoxicated in violation ofVehicle and Traffic Law § 1192 (2), upon his plea of guilty, and sentencing him to aterm of incarceration of one year and a period of probation of three years. By decision and orderon motion dated July 18, 2017, this Court, inter alia, granted that branch of the defendant'smotion which was for a stay of execution of so much of the judgment as imposed a period ofincarceration upon him pending hearing and determination of the appeal.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the sentence imposed from a term of incarceration of 1 year to a term of incarceration of90 days with credit for time served; as so modified, the judgment is affirmed, and the matter isremitted to the Supreme Court, Nassau County, for further proceedings pursuant to CPL 460.50(5).
On August 4, 2016, the defendant entered a plea of guilty to driving while intoxicated inviolation of Vehicle and Traffic Law § 1192 (2), a class A misdemeanor, andagreed to abide by certain conditions set forth in a plea and sentence contract (hereinafter the pleaagreement). Pursuant to the terms of the plea agreement, the defendant was to serve 90 days in"the Nassau County Jail's Drug Alcohol Rehabilitation Treatment (DART) program" before hewas sentenced, followed by 1 year of interim probation, and be subjected to 30 days oftransdermal alcohol monitoring following his release from jail. During the period of interimprobation, the defendant was to attend treatment sessions under a Screening TreatmentEvaluation Prevention (hereinafter STEP) program. He was also required to install an ignitioninterlock device on any motor vehicle owned or operated by him, and undergo an eight-monthperiod of monitored personal breath testing. In the event that the defendant complied with theconditions of the plea agreement, he would be sentenced to a term of incarceration of 90 daysfollowed by a period of probation of 3 years with alcohol conditions, with credit for the 1-yearperiod of interim probation. In the event that the defendant failed to comply with the conditionsof the plea agreement, he would be subjected to an enhanced sentence of one year ofincarceration followed by three years of probation with alcohol conditions. Moreover, if thetransdermal alcohol monitoring device indicated that the defendant had consumed alcohol, thedefendant would be sentenced to, inter alia, 30 days of house arrest.
In accordance with the terms of the plea agreement, the defendant surrendered to the NassauCounty Sheriff's Department to commence his term of incarceration. During that time period, heparticipated in the DART program at the Nassau County Correctional Center. Prior to enteringinto the plea agreement, the defendant had begun attending a program entitled "Bridge Back toLife." Upon release from the Nassau County Correctional Center, the Probation Departmentreferred the defendant to resume participation in this program. However, the defendant'sparticipation could not be resumed at that time due to the loss of his healthcare benefits and lackof funds related to the fact that his employment had been suspended as result of his arrest. Whenthe defendant's health insurance was reinstated, he re-entered the program.
The transdermal monitoring device indicated that the defendant consumed alcohol onOctober 29, 2016. For that violation, the plaintiff served 30 days of house arrest.
On June 21, 2017, the Supreme Court imposed the enhanced sentence of one year ofincarceration followed by a three-year period of probation, as requested by the People, as a resultof the defendant's failure to attend treatment sessions in compliance with the terms of the pleaagreement.
Due process requires that, before imposing an enhanced sentence, the court conduct aninquiry sufficient for it to determine that the defendant indeed violated the plea condition (see People v Valencia, 3 NY3d714, 715 [2004]; People v Outley, 80 NY2d 702, 712 [1993]). Notwithstanding thedefendant's contention that the Supreme Court was required to conduct a hearing to determinewhether he had violated the terms of the plea agreement, the court in this case conducted aninquiry sufficient to determine that the defendant violated the agreement by, inter alia, failing toattend treatment sessions required under a STEP program (see People v Youmans, 106 AD3d 1036, 1037 [2013]; People v Kitchens, 46 AD3d 577,578 [2007]). Consequently, the defendant's due process rights were not violated when thesentencing court imposed the enhanced sentence without first conducting a hearing (see People v Foster, 153 AD3d1429, 1429-1430 [2017]).
Moreover, it is undisputed that the defendant failed to comply with the express terms of theplea agreement with respect to attending treatment sessions required under a STEP program.
Due to the defendant's failure to comply with the conditions of the plea agreement, theSupreme Court "had the right to impose a greater sentence" (People v Grant, 122 AD3d 767, 767 [2014]; see People vFiggins, 87 NY2d 840, 841 [1995]; People v Hubbard, 105 AD3d 760 [2013]).
However, even though the Supreme Court had a right to enhance the sentence, this Court hasbroad, plenary power to modify an enhanced sentence that is unduly harsh or severe under thecircumstances (see CPL 470.15 [6] [b]; People v Delgado, 80 NY2d 780 [1992];People v Thompson, 60 NY2d 513, 519 [1983]). "Our sentencing review power 'may beexercised, if the interest of justice warrants, without deference to the sentencing court' "(People v Kordish, 140 AD3d981, 982 [2016] [emphasis omitted], quoting People v Delgado, 80 NY2d at 783)."In considering whether a sentence is unduly harsh or severe under the circumstances, weexercise our discretion giving consideration to, 'among other things, the crime charged, theparticular circumstances of the individual before the court and the purpose of a penal sanction,i.e., societal protection, rehabilitation, and deterrence' " (People v Kordish, 140AD3d at 982-983, quoting People v Farrar, 52 NY2d 302, 305 [1981]).
Here, the defendant demonstrated that his failure to attend treatment sessions was related tohis loss of healthcare benefits and lack of a salary. The defendant submitted evidence that, uponthe resumption of his healthcare benefits, he re-entered the program, and his progress lettersdemonstrated that he had shown insight into his substance abuse and noted that his urinescreenings were negative for any substances. Moreover, a psychologist, who was an expert inaddiction disorders and who had evaluated the defendant, opined that the defendant had a mildalcohol use disorder and was not likely to be a recidivist. The defendant had no further positivetransdermal readings, installed an Ignition Interlock Device in his vehicle, and had successfullyutilized the "Sober Link," a personal breath-testing device. Moreover, three of the defendant'swork supervisors submitted letters of recommendation on his behalf. Considering the particularcircumstances under which the defendant failed to comply with the express terms of the pleaagreement, we find that the Supreme Court's imposition of a 1-year term of incarceration, ratherthan the originally agreed-upon term of incarceration of 90 days with credit for the time whichthe defendant served, rendered the incarceration component of the sentence imposed undulyharsh. Accordingly, we modify the sentence to the extent indicated herein.
The defendant's contention that the sentencing court improperly abdicated its responsibilityas the sole arbiter of the facts is unpreserved for appellate review, and we decline to review it inthe exercise of our interest of justice jurisdiction. The defendant's further contention that therewere internal inconsistencies within the plea and sentence agreement, rendering it unenforceable,is without merit. Leventhal, J.P., Austin, Duffy and Barros, JJ., concur.