The opinion of the court was delivered by: Read, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
In January 2006, defendant Vincent Fiammegta was arrested and charged with two counts each of second-degree burglary, third-degree burglary, second-degree criminal trespass, third-degree criminal trespass, fourth-degree criminal mischief, fifth-degree criminal possession of stolen property, and petit larceny. The charges were based on allegations that he broke into two apartment buildings in Brooklyn and stole items from one of them. According to the pre-sentence report, defendant admitted his guilt and explained that he had been "high on [xanax], ambien and crack cocaine" at the time.
On May 10, 2006, the judge was informed that the prosecutor had approved defendant to participate in the Kings County District Attorney's Drug Treatment Alternative-to-Prison Program (DTAP), which offers substance abuse treatment in lieu of prison to nonviolent, drug-addicted felons who face a mandatory prison sentence under New York's second felony offender law. That same day, defendant was adjudicated a predicate felon, and pleaded guilty to one count of second-degree burglary. In return, the People agreed to dismissal of the indictment once defendant successfully completed an 18-24 month residential drug treatment program and aftercare, to be followed by re-entry into the community. The judge advised defendant that if he did not satisfactorily finish the program, he would be sentenced to eight years in prison and five years of postrelease supervision.
Defendant entered a residential drug treatment program soon thereafter. By letter dated September 13, 2006, however, the program's Assistant Director of Clinical Services informed Supreme Court that defendant was at risk of discharge, essentially for violating conduct rules and displaying an uncooperative attitude. Consequently, at defendant's court appearance the same day, the judge warned that "[t]his is not working," referring to defendant's participation in DTAP. When defense counsel asked the judge to give her client a second chance, he agreed to consider the request, and adjourned the case until September 27, 2006. At that time, a representative of Treatment Alternatives for Safe Communities (TASC) informed Supreme Court that defendant had been cleared to enter a residential drug treatment program at another facility later that day. TASC, a federally funded statewide agency that operates under the auspices of the Division of Probation and Correctional Alternatives and works in conjunction with DTAP, places defendants in treatment programs, monitors their progress, and acts as a liaison between the programs and the court. The judge advised defendant that he would "take another chance" on him, and give him this one "last chance."
On March 15, 2007, the TASC Program Director wrote to the judge to report that defendant had been discharged from the program he entered the previous September on account of "non-compliance, thus violating the terms of his release and plea." She enclosed a letter dated March 14, 2007 from the program's Facility Director, who alleged that "[a]s a result of an extensive and thorough investigation," defendant had been tagged for thefts from vocational counselors at a school that the program used.
The Director's letter explained that 21 residents were initially under suspicion for these thefts, and that security at the school was very lax. Yet, the evidence "clearly pointed to" defendant as the thief for several reasons. First, another resident claimed to have seen defendant using keys to open doors to the vocational counselors' offices, and defendant asked this resident not to mention what he had observed. Second, defendant was involved in an unauthorized "scheme to collect money for weights in the gym," which netted $90 subsequently stolen from a locker. Third, defendant was found to possess $167, which he claimed to have saved. According to the Director, defendant "admitted that the evidence point[ed] to him," but had "not officially taken responsibility for the thefts."
On March 16, 2007, defendant appeared before the judge, who adjourned the case to "[s]ee if [the program] [would] take [defendant] back." When defendant next appeared on March 27, 2007, the prosecutor asked the judge to sentence him. Defense counsel countered that defendant had been "very successful" in treatment, and had been "clean" for 14 months. She complained that the March 14th letter was "very circumstantial," and failed to indicate that any "type of proceeding" had been held to establish her client's responsibility for the thefts. She requested that another program be found for defendant if the program he had been participating in refused to take him back.
The TASC representative stated that DTAP would have to approve any other treatment opportunity for defendant and was "not inclined" to do so. Further, a DTAP representative said that she was "clear" that DTAP was not about to offer defendant a third program. Supreme Court recessed the case so defense counsel could speak to a DTAP supervisor, but predicted that this was "not going to work." When the case was called again later that day, the prosecutor announced that the DTAP supervisor was unwilling to afford defendant another chance in treatment.
Defense counsel requested a hearing because defendant insisted on his innocence of the thefts. Calling the Director's letter "speculation," she asserted that the program's legal department considered the charges too flimsy to investigate. She also stated that defendant's family and girlfriend had sent him money, and that he received "a stipend for being involved in a substance abuse program." Defense counsel told the judge that defendant's mother was present in the courtroom and willing to confirm that she had sent money to her son.
The following colloquy ensued:
"COURT: Well, I'm not here to dispute this. In fact, you were supposed to finish the program. You didn't finish the program. You had an opportunity. You got kicked out of that program. That's it.
"DEFENSE COUNSEL: But it's based on allegations that . . . [are] unfounded . . .
"COURT: Let's say that I agree with you that it was unfounded. They kicked him out of the program. They're not giving him ...