People v Miller
Annotate this CaseDecided on August 9, 2006
Monroe County Ct
People of the State of New York, Respondent,
against
William Miller, Defendant-Appellant.
05/0131
For Appellant:
Edward J. Nowak, Esq.
Monroe County Public Defender
David M. Abbatoy, Jr., Esq., of counsel
Assistant Public Defender
10 N. Fitzhugh Street
Rochester, New York 14614
For Respondent:
Michael C. Green, Esq.
Monroe County District Attorney
Stephen X. O'Brien, Esq., of counsel
Assistant District Attorney
Ebenezer Watts Building, Suite 832
Rochester, New York 14614
John R. Schwartz, J.
Defendant-appellant, William Miller, appeals from a judgment of Henrietta Town Court (Kopacki, J.), entered September 29, 2005, convicting him, upon his guilty plea, of two counts of petit larceny and sentencing him to two consecutive one-year terms in the Monroe County Jail. The sentence was imposed after defendant, whose case had been transferred to the Rochester Drug Treatment Court pursuant to CPL 170.15 (4) upon his guilty plea, was terminated from that [*2]court, and the case was transferred back to the Henrietta Town Court for sentencing,
On appeal, defendant raises various points, all based upon his erroneous premise that he was originally sentenced by the Henrietta Town Court to probation. He argues that the court failed to afford him minimal due process protections by "resentencing" him to jail time, that the "revocation of probation" should be reversed and remanded to a different town justice, and that the sentence, two consecutive one-year terms of incarceration, is harsh and excessive.
On April 12, 2005, defendant was charged with two non-transactional counts of petit larceny, stemming from his theft of portable DVD players from BJ's Wholesale Club in the Town of Henrietta on March 22, 2005, and March 29, 2005. On April 20, 2006, he was arraigned on the charges and entered a plea of not guilty. On July 20, 2005, he pleaded guilty to both charges and his case was sent to the Rochester Drug Treatment Court. The plea colloquy reveals the following:
THE COURT:William Miller. How do you plead to Petit Larceny, twice?
THE DEFENDANT: Guilty.
THE COURT: He's going to get probation on both, and he's going to go to Drug Court. Remember I asked you why there were two separate PLs? Before, the offer was one for two with a year. Does he want that?
MS. MEYER (THE ADA): No. The new offer is to plead to both and go to Drug Court.
THE COURT: Do you need to talk some more?
THE DEFENDANT: I don't plan on goofin' up, Your Honor.
THE COURT: Okay. I understand that but here's the offer.
THE DEFENDANT: If I goof up, is there a time cap on that?
THE COURT: Yeah, two years.
THE DEFENDANT: Well, Your Honor —
THE COURT: Do you want to go to trial?
THE DEFENDANT: No, I'll take it.
THE COURT: Just to ease your pain, if you fail Drug Court, I'm going to put you in jail for two years. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Any confusion?
THE DEFENDANT: No.
(July 20, 2005, pages 2-3)
Although the court did state that it was imposing "probation", it did not specify conditions with which defendant was to comply and it did not give defendant any writing memorializing those conditions, as required by CPL 410.10 (1). Instead, after it accepted defendant's guilty pleas, it handed defendant a Rochester Drug Treatment Court contract form to sign. Defendant, his attorney and the prosecutor all signed the contract. A copy of the Rochester Drug Treatment Court contract signed by defendant on July 20, 2005, is attached to and made part of defendant's application for a stay pending appeal. The contract, which sets forth the terms and conditions of defendant's participation in the drug court program, contains sentencing options available in the event of the successful completion of the program, as well as termination from the program. Specifically, the contract signed by defendant, his attorney and the assistant district attorney on July 20, 2005, contained the following provisions:
"20)a) I understand that if I comply with this contract and successfully complete the [*3]RDTC program, the charge(s) against me will be disposed of as follows:
* * * *
b) The sentencing options of the RDTC Judge upon my successful completion of the RDTC program are:
__x___ conditional discharge
______ attendance at ____ monthly Clean Slate Alumni Group Meetings
______ restitution in the amount of ______
______ restitution as determined by presentence investigation
______ no contact or _____ no offensive contact order(s) of protection
______ statutory surcharge and victim assessment fee
______ fine
______ other, specify: ______________________________"
"21)a) I understand that if I fail to comply with this contract and am terminated from the RDTC, and have not entered a plea of guilty, the criminal case against me may be returned to the referral court for prosecution of the charge(s) against me. I understand that if I fail to comply with this contract and am terminated from the RDTC and I have entered a guilty plea, my misdemeanor conviction will remain and the Henrietta Town Court (inserted in place of RDTC) Judge will sentence me in accordance with law as indicated below.
b) If I am sentenced by the Henrietta Town Court (inserted in place of RDTC) Judge, the sentencing options available to him are:
__x___ local jail term of ___two years____________
______ restitution to be determined by the presentence investigation
______ restitution in the amount of $___________
______ no contact or ______ no offense contact order(s) of protection
______ fine
______ mandatory surcharge and victim assessment charge
______ suspension/revocation of driving privilege/license
______ other ______________________________________ (RDTC contract)"
Defendant's case was transferred to the Rochester Drug Treatment Court pursuant to CPL 170.15 (4), the statutory provision that authorizes the transfer of a case from one local court to a designated "hub" drug court within the same county. Subsequently, the Henrietta Town Court was advised by personnel from the Rochester Drug Treatment Court that defendant had "failed Drug Court". Defendant appeared in the Henrietta Town Court on September 29, 2005, and the court imposed the promised sentence of two consecutive one-year terms in the Monroe County Jail. At that time, the only objection raised by defense counsel regarding the sentence was that he believed that the promised sentence was one year, not two consecutive one-year terms.
There is no merit to defendant's contention that the Henrietta Town lacked authority to impose the sentence of two consecutive one-year terms of local jail time upon defendant's failure and termination from the Rochester Drug Treatment Court. Contrary to defendant's position, on September 29, 2005, the Henrietta Town Court did not "revoke" defendant's probation or "re-[*4]sentence" defendant to a term of local jail time. To understand the error of defendant's position, one only need look at the record in this case. If, on July 20, 2005, defendant had been sentenced to probation, the court would have been required by law to give defendant a written copy specifying the conditions with which defendant was required to comply (CPL 410.10 [1]). He was not given any such writing. Moreover, if, on July 20, 2005, defendant had been sentenced to probation, a copy of those conditions would have been required by law to be filed with and become part of the record of the case (CPL 410.10 [1]). The record of this case contains no copy of any conditions of probation. Rather, it is evident that what occurred in this case is that defendant, following two arrests for petit larceny that were addiction-driven, pleaded guilty to both charges and executed a drug court contract under which he was given the opportunity and agreed, to have his case transferred to and participate in the Rochester Drug Treatment Court. Defendant consented to have his sentencing adjourned while he participated in that court's drug treatment program. In addition, he agreed to a term of local jail time of two consecutive one-year terms if he did not successfully complete the drug treatment program. When defendant was discharged from the Rochester Drug Treatment Court prior to completing the program, he was sentenced accordingly. Had defendant successfully completed the program of and graduated from the Rochester Drug Treatment Court, the contract he executed provided that he would have received a sentence of a conditional discharge. Tying a reduced sentence to successful completion of a drug treatment court is favored by the courts and is what a drug treatment court is all about (see People v Woods, 192 Misc 2d 590, 592 [2002]; see also People v Parker, 271 AD2d 63, 69 [2000], lv denied 95 NY2d 967 [2000]). Unfortunately, in defendant's case, those efforts were not successful and he was terminated from that court. However, defendant has no basis to appeal on the ground that the sentence imposed amounted to an impermissible revocation of probation or an illegal resentence.
It should further be noted that the record in this case is incomplete in that it does not contain the proceedings of the Rochester Drug Treatment Court involving defendant. It is incumbent upon the appellant to assemble a proper and complete record and failure to do so, is grounds for dismissal of the appeal. There is no indication of the proceedings that occurred in that court or whether at any time there was a modification of the contract that was signed by all parties in the Henrietta Town Court at the time defendant entered his guilty plea. Here, however, defendant does not challenge his termination from that court, which triggered the referral of defendant's case back to the Henrietta Town Court for the imposition of the promised sentence.
Moreover, any claim that the Henrietta Town Court was required to hold a hearing before imposing the agreed-upon sentence lacks merit, inasmuch as "any sentence promise at the time of the plea is, as a matter of law and strong public policy, conditioned upon its being lawful and appropriate in light of * * * information obtained from other reliable sources" (People v Selikoff, 35 NY2d 227, 238 [1974 ], cert denied 419 US 1122 [1975]). The nature and extent of the inquiry that the sentencing court must conduct to assure itself of the reliability of information before imposing sentence is within the court's discretion pursuant to the direction of CPL 400.10 (see People v Woods, 192 Misc 2d at 592). Here, the court was informed by personnel from the Rochester Drug Treatment Court that defendant had been terminated from that court and defendant did not challenge that fact. Moreover, at no time did defendant argue that his plea was not knowing and voluntary. His only complaint was that he believed that the promised sentence [*5]was one year. That belief is belied by the drug court contract that defendant signed and which unequivocally states that the Henrietta Town Court is authorized, if defendant does not successfully complete and terminated from the Rochester Drug Treatment Court, to impose a sentence of two consecutive one-years terms of local jail time. That sentence is not harsh and excessive given defendant's lengthy criminal history.
Therefore, it is hereby ordered that the judgment appealed from is affirmed without costs.
Dated:, 2006
Rochester, New York
_________________________________
Hon. John R. Schwartz
Acting Monroe County Court Judge
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