PRESENT:: PESCE, P.J., SOLOMON and ELLIOT, JJ.
from five amended judgments of the Criminal Court of the City
of New York, Kings County (Raymond Rodriguez, J., at pleas;
Jacqueline D. Williams, J., at sentences), rendered May 9,
2013. The amended judgments revoked sentences of conditional
discharge previously imposed by the same court (Jacqueline D.
Williams, J.), upon defendant's admission that he had
violated a condition thereof, and resentenced him to
concurrent terms of imprisonment of six months on his
convictions of criminal possession of a controlled substance
in the seventh degree and of four charges of petit larceny.
that the amended judgments of conviction are affirmed.
was charged in separate accusatory instruments with four
charges of petit larceny (Penal Law § 155.25), in which
it was alleged that he had stolen various items from four
different stores on December 24, 2012, January 30, 2013,
February 4, 2013, and March 10, 2013, respectively. Defendant
was also charged in a fifth accusatory instrument with
criminal trespass in the third degree (Penal Law §
140.10 [a]), trespass (Penal Law § 140.05), and criminal
possession of a controlled substance in the seventh degree
(Penal Law § 220.03). According to that accusatory
instrument, on March 21, 2013, defendant was in the backyard
of a residential apartment building without permission or
authority. The police recovered a quantity of crack cocaine
that defendant had dropped to the ground.
April 2, 2013, defendant appeared before Judge Raymond
Rodriguez. Defendant agreed to plead guilty to criminal
possession of a controlled substance in the seventh degree
and four charges of petit larceny. He agreed to enter a
residential drug treatment program for 18 to 24 months. In
the event defendant did not complete the program, he would be
sentenced to concurrent terms of incarceration of six months.
The court conducted an allocution of defendant, at which he
agreed that no one had forced or threatened him to enter the
plea. He was pleading guilty of his own free will. The court
told defendant that he had the right to a trial where he
could call witnesses and have his attorney question the
People's witnesses. Defendant had the right to testify or
remain silent. He agreed that he was giving up those rights
in each of the five cases, and that this was what he wanted
to do. The court informed defendant that if he was not a
United States citizen, the convictions could have negative
immigration consequences for him. Defendant agreed that he
still wanted to plead guilty. He admitted that, at
approximately 4:50 p.m. on March 21, 2013 at 49 Throop Avenue
in Brooklyn, he knowingly and unlawfully possessed a quantity
of cocaine, and admitted to the underlying facts of the four
April 16, 2013, defendant was sentenced by Criminal Court
Judge Jacqueline D. Williams, as promised by Judge Rodriguez.
On or about April 18, 2013, defendant left the drug
rehabilitation program. On April 26, 2013, defendant appeared
in court with counsel. The court adjourned defendant's
case to May 9, 2013 for disposition and to determine whether
he would be permitted to re-enter the treatment program or
enter another program. On May 9, 2013, defendant appeared
again before Criminal Court Judge Jacqueline D. Williams.
Defendant admitted that he had violated a condition of the
conditional discharges because he had failed to complete the
substance abuse treatment program to which he had been
assigned. The court sentenced defendant to concurrent terms
of six months of incarceration.
appeal from the amended judgments of conviction, defendant
contends that the Criminal Court failed to inform him during
the allocution at the May 9, 2013 court proceeding that he
had a right to a hearing regarding whether he had violated
the conditional discharges. The People respond that
defendant's contention is unpreserved for appellate
review and, in any event, defendant was not entitled to a
hearing where the issue involved his participation in a drug
rehabilitation program. Moreover, defendant had had an
opportunity to be heard.
410.70 (1) provides that a "court may not revoke a
sentence of probation or a sentence of conditional
discharge... unless (a) the court has found that the
defendant has violated a condition of the sentence and (b)
the defendant has had an opportunity to be heard pursuant to
this section." CPL 410.70 (3) provides that the
"hearing must be a summary one by the court without a
jury.... A finding that the defendant has violated a
condition of his sentence must be based upon a preponderance
of the evidence."
never requested a hearing on the violation of the conditional
discharges. However, as defendant was sentenced to
incarceration on May 9, 2013, at the same proceeding at which
he admitted to violating the conditional discharges, we will
consider his claim (see People v Tyrell, 22 N.Y.3d
hearing pursuant to CPL 410.70 is not required where, as
here, the defendant admits, or it is undisputed, that he or
she violated the terms of a conditional sentence by not
completing a substance abuse treatment program (see
People v Valencia, 3 N.Y.3d 714, 715 ; People
v Bonano, 124 A.D.3d 495');">124 A.D.3d 495 ; People v
McDevitt, 97 A.D.3d 1039, 1041 ; People v
O'Neill, 76 A.D.3d 1143, 1143-1144 ;
People v Billups, 63 A.D.3d 750');">63 A.D.3d 750 ; People v
DeRosa, 39 Misc.3d 137');">39 Misc.3d 137');">39 Misc.3d 137');">39 Misc.3d 137 [A], 2012 NY Slip Op 52471[U]
[App Term, 2d Dept, 9th & 10th Jud Dists 2012]). At the
April 26, 2013 and May 9, 2013 court appearances, the parties
essentially discussed whether defendant wanted to re-enter
treatment or accept a sentence of incarceration. Under the
circumstances, the court assured "itself that the
information upon which it base[d] the sentence [was] reliable
and accurate" (People v Outley, 80 N.Y.2d 702,
712 ). Moreover, defense counsel had an
"opportunity to comment on the facts before"
sentence was imposed (People v DeRosa, 39 Misc.3d
137 [A], 2012 NY Slip Op 52471[U], *2). Thus, defendant's
contention is without merit.
the amended judgments of ...