NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
January 22, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
RODNEY BROWN, DEFENDANT-APPELLANT.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered August 7, 2007, convicting defendant, upon his plea of guilty, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Andrias, Nardelli, Catterson, Moskowitz, JJ.
Defendant claims that his guilty plea was involuntary because the court allegedly promised to order him enrolled in the comprehensive alcohol and substance abuse treatment (CASAT) program, a promise that went unfulfilled since court-mandated CASAT is only available for persons convicted of drug offenses (Penal Law § 60.04). However, while defendant moved to withdraw his plea, he did so on different grounds from those he advances on appeal, and while he raised his present claim in a CPL article 440 motion to vacate the judgment, the court denied that motion, and this Court denied leave to appeal. Accordingly, this issue is unpreserved (see People v Lopez, 71 NY2d 662, 665 ), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The record does not establish that a guarantee of CASAT was part of the court's sentence promise. Instead, the record reflects that, as defendant specifically acknowledged, the only promise upon which the plea was actually conditioned was a sentence of 2 to 4 years, that defense counsel additionally asked the court to recommend CASAT, and that defendant's plea was not induced by the court's promise to "place" him in CASAT. Furthermore, the fact that, at sentencing, the court purported to direct defendant's enrollment in CASAT did not render the sentence illegal or entitle defendant to withdraw his plea. The purported direction was essentially a recommendation made by the court to the Department of Correctional Services, which chose, instead, to place defendant in a different therapeutic program.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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