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.
Decided on December 27, 2012 Tom, J.P., Mazzarelli, Catterson, Renwick, DeGrasse, JJ.
Judgment, Supreme Court, New York County (Brenda Soloff, J.), rendered September 5, 2006, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, affirmed.
The court properly concluded that defendant failed to meet the conditions of his plea agreement (see generally People v Jenkins, 11 NY3d 282 ). Over a period of 8½ years, the court gave defendant many opportunities to earn a dismissal of the indictment under the Drug Treatment Alternative to Prison program. Instead, defendant violated the terms of his original plea agreement by relapsing into drug use, absconding from aftercare and having conflicts with the law that included a new drug conviction. Defendant's obligations under the original agreement were clear (see People v Cataldo, 39 NY2d 578 ). Defendant's brief successes in drug treatment, followed by relapses, did not satisfy the terms of the agreement.
Defendant did not preserve his contention that the second plea agreement he entered into was a nullity because it contained allegedly unconstitutional postplea conditions, and we decline to review it in the interest of justice. As an alternate holding, we reject this claim on the merits. By the time defendant entered into the second agreement, he had already violated the first one. While these violations made defendant eligible for a sentence of incarceration, the court provided him with another opportunity to avoid a prison term by complying with the terms of the new agreement. Defendant voluntarily agreed to the second agreement, and then violated its terms as well.
We perceive no basis for dismissing the indictment in the interest of justice. All concur except Mazzarelli and Catterson, JJ. who dissent in a memorandum by Catterson, J. as follows: CATTERSON, J. (dissenting)
I must respectfully dissent. The majority affirms the defendant's 2006 felony conviction on the ground that the defendant "violated the terms" of the plea agreement made in connection with his felony arrest in 1997. In my opinion, the facts of this case do not support the majority's conclusion. As set forth more fully below, the record indicates that the first plea agreement required the defendant to successfully complete "at least" one year of a drug treatment program in order for his indictment to be dismissed. However, three years later, despite defendant's apparent completion of the drug treatment program, the People continued to impose new conditions such as obtaining a GED and securing employment which they explicitly concede were not part of the original plea agreement.
Settled case law prohibits such rewriting of a voluntarily entered-into plea agreement. I would therefore dismiss the indictment.
The defendant was indicted for criminal sale and possession of a controlled substance in the fifth degree after he sold Xanax to an undercover police officer on October 19, 1997. On March 25, 1998, the defendant pleaded guilty to criminal sale of a controlled substance in the fifth degree in full satisfaction of the indictment, and entered into a Drug Treatment Alternative to Prison (DTAP) agreement as part of his plea agreement. The DTAP agreement required that the defendant participate in the H.E.L.P./Project Samaritan drug treatment program for at least 12 months, that he not "get into trouble," "violate the rules," or "commit any other crimes," and that he "cooperate with the DTAP program and the court," but it did not set a date for completion. The People agreed that they would dismiss the indictment if the defendant successfully completed the program, and whether "the defendant has successfully completed the [drug treatment] program is within the sole discretion of the prosecutor." The defendant signed the DTAP agreement incorporating the terms of the plea.
Pursuant to a report eight months later on November 4, 1998, the defendant was "compliant with the program rules and regulations." He continued "doing well" in the program as reported on January 13, 1999. At an appearance on June 2, 1999, the defendant told the court that he understood that the case was to have been dismissed in April 1999, which would have marked 12 months in the program. The court informed the defendant that the case would be dismissed when the defendant "completed" the program, but did not inform the defendant as to a date, approximate or otherwise, or any triggering event for completion. The defendant continued doing well in treatment and tested negative for drugs through August 25, 1999.
When he appeared in court on September 22, 1999, after completing 18 months of residential treatment, defense counsel informed the court that the defendant had been discharged from the program for keeping a pocketknife in his locker to open parcels sent by his family, a violation of the facility's rules. However, defense counsel informed the court that the discharge coincided with his discharge from residential treatment for "complet[ing] everything."
The prosecutor, meanwhile, asserted that the defendant was further required to complete "after phase" treatment pursuant to the DTAP agreement. Although, at the time, defense counsel was "not sure" if the agreement with DTAP mandated aftercare, and indeed the record reflects that the agreement does not specify aftercare, he nevertheless informed the court that the defendant had been referred to an outpatient treatment program.
At the defendant's appearance on October 1999, the prosecutor, for the first time, suggested to the court that the defendant seek treatment at a methadone clinic. The defendant agreed, and on December 22, 1999, he began treatment at the ...