Calendar Date: April 25, 2013
Michelle E. Stone, Vestal, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.
Before: Rose, J.P., Lahtinen, Spain and Garry, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered June 20, 2011, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.
Defendant was charged with criminal possession of a weapon in the third degree and he proceeded pro se with the assistance of "shadow" counsel. He eventually reached an agreement whereby he pleaded guilty to the charge and County Court adjourned sentencing with the understanding that if defendant successfully completed a drug treatment program, the plea would be vacated and the indictment dismissed. County Court warned defendant that if he was arrested or did not complete a drug treatment program, he faced a prison sentence of 3½ to 7 years. Defendant was eventually released from jail in order to expedite his ability to gain entry into a drug treatment program, but he was later arrested and incarcerated. After being released again, defendant was arrested again and County Court, after denying his motion to withdraw his guilty plea, sentenced him to a prison term of 3 to 6 years. Defendant now appeals.
We are not persuaded that County Court violated defendant's due process right to be present at all material stages of the proceedings. Although defendant relies on two postplea conferences that were attended by his standby counsel without his presence, the record makes clear that defendant's presence was not required because they dealt only with procedural issues (see People v Horne, 97 N.Y.2d 404, 416 ; People v Horan, 290 A.D.2d 880, 884 , lv denied 98 N.Y.2d 638 ; People v Alfieri, 201 A.D.2d 935, 935 , lv denied 83 N.Y.2d 908 ). Moreover, other on-the-record postplea conferences were held with defendant present regarding the same issues and he was able to meaningfully participate (see People v Criscitello, 32 A.D.3d 1112, 1113 ).
Defendant also contends that County Court abused its discretion in denying his motion to withdraw his guilty plea. He argues that the plea agreement included a promise that County Court would transport him from the local jail to a drug rehabilitation facility and that the court breached the agreement when, instead, it released him. The record reveals, however, that the court's offer to sign a transfer order was not part of the agreement but was merely an effort to accommodate defendant. In any event, the offer became academic once defendant was released, and he never objected to being released prior to making his motion to withdraw the guilty plea almost one year later. Accordingly, we can find no basis to disturb County Court's exercise of its discretion in denying defendant's motion to withdraw his plea (see People v Pittman, 104 A.D.3d 1027, 1027-1028 ; People v Wilson, 92 A.D.3d 981, 981 , lv denied 19 N.Y.3d 1029 ; People v Moreno, 86 A.D.3d 863, 864 , lv denied 17 N.Y.3d 954 ).
Contrary to defendant's contention, he was afforded an adequate opportunity to dispute his postplea arrests, which were the basis for imposing the enhanced sentence (see People v Outley, 80 N.Y.2d 702, 713 ). In fact, defendant candidly admitted that he had been rearrested and that he continued to use and sell drugs while released (see People v McDevitt, 97 A.D.3d 1039, 1041 , lvs denied 20 N.Y.3d 987 ; People v Saucier, 69 A.D.3d 1125, 1126 ). Inasmuch as County Court had repeatedly warned defendant that an enhanced sentence would be imposed if he were rearrested, we find no abuse of discretion (see People v Saucier, 69 A.D.3d at 1126; People v Baez, 67 A.D.3d 1204, 1204 , lv denied 14 N.Y.3d 797 ; People v Holmes, 67 A.D.3d 1069, 1071 ).
We have reviewed defendant's remaining contentions and find them to be unavailing.
Lahtinen, Spain and Garry, JJ., ...