SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
May 20, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from judgments of the City Court of New Rochelle, Westchester County (Preston S. Scher, J.), rendered September 30, 2009.
People v Pompi (James)
Decided on May 20, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: TANENBAUM, J.P., LaCAVA and IANNACCI, JJ
The judgments convicted defendant, upon his pleas of guilty, of two charges of criminal possession of a controlled substance in the seventh degree and sentenced him to consecutive one-year terms of imprisonment.
ORDERED that the judgments of conviction are affirmed.
In 2008, defendant entered into a drug treatment court program, after having pleaded guilty to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), with the understanding that the charge would be dismissed if he successfully completed the program, but he would be sentenced to a one-year term of imprisonment if he did not complete the program. Defendant signed a misdemeanor waiver of rights form and a "Drug Treatment Court Contract." Pursuant to this contract, defendant was required to "attend all Court Sessions" and, upon defendant's failure to comply with any term of the contract, the court could "impose any appropriate sanctions which may include, but not limited to . . . [u]nsuccessful termination from the program which may lead to [his] sentencing on the original charge to a term prescribed by law."
In March 2009, defendant failed to appear for a scheduled court date, and a warrant was issued for his arrest. In April 2009, defendant was arrested for criminal possession of a controlled substance in the seventh degree and pleaded guilty to the charge with the understanding that the charge would be dismissed if he successfully completed the program. However, if he failed to complete the program, he would receive two consecutive one-year terms of imprisonment for the convictions. Defendant signed another misdemeanor waiver of rights form. When defendant failed to appear for scheduled court dates in May and June 2009, warrants were issued for his arrest. Subsequently, defendant was offered the opportunity to enter a long term in-patient drug treatment program, which offer he declined. Thereafter, defendant was sentenced to two consecutive one-year terms of imprisonment.
By pleading guilty, defendant forfeited his claim that he was denied the effective assistance of counsel to the extent that it does not directly involve the plea bargaining process (see People v Harris, 79 AD3d 1069 ; People v Patel, 74 AD3d 1098, 1099 ; People v Perazzo, 65 AD3d 1058 ). In any event, defendant's claim that he was denied the effective assistance of counsel partially rests on matter dehors the record, which cannot be reviewed on direct appeal (see People v Bermejo, 77 AD3d 965 ; People v Patel, 74 AD3d at 1099; People v Ali, 55 AD3d 919 ; People v Drago, 50 AD3d 920 ; People v DeLuca, 45 AD3d 777 ). To the extent this claim is reviewable on direct appeal, the record indicates that defendant's counsel provided meaningful representation in accordance with the state standard (see NY Const, art I, § 6; People v Ford, 86 NY2d 397 ; People v Johnson, 71 AD3d 1048 ). Moreover, counsel's performance could not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI; Strickland v Washington, 466 US 688 ; People v Garrett, 68 AD3d 781 ).
Defendant's contention that he was denied due process because the City Court failed to hold a hearing on whether he had violated the terms of his drug treatment court contract is unpreserved for appellate review, as defendant neither requested a hearing nor moved to withdraw his pleas on this ground (see People v Kitchens, 46 AD3d 577, 578 ; People v Stowe, 15 AD3d 597, 598 ). In addition, defendant's contention that the court coerced him into pleading guilty to the April 2009 charge is unpreserved for appellate review given defendant's failure to move to withdraw his plea or vacate the judgment of conviction (see People v Martinez, 40 AD3d 1309 ; People v Ivery, 18 AD3d 884 ) and, in any event, has no merit as it is unsupported by the record (id. at 885). A review of the plea proceedings clearly indicates that defendant's guilty plea to the April 2009 charge was not the subject of coercion and that he entered it voluntarily, knowingly and intelligently (see People v Martinez, 40 AD3d at 1310).
Defendant's contentions that the City Court improperly imposed enhanced sentences and that the sentences were harsh and excessive are academic because defendant has served his sentences and has been released from custody (see People v Ackridge, 31 AD3d 654 ; People v Nicholson, 31 AD3d 468 ; People v Canada, 16 Misc 3d 132[A], 2007 NY Slip Op 51481[U] [App Term, 9th & 10th Jud Dists 2007]).
Accordingly, the judgments of conviction are affirmed.
Tanenbaum, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: May 20, 2011
© 1992-2011 VersusLaw Inc.