People v McMillan

People v McMillan 2013 NY Slip Op 08663 Decided on December 26, 2013 Appellate Division, Second Department 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 26, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
PLUMMER E. LOTT
LEONARD B. AUSTIN
SHERI S. ROMAN, JJ.
2012-07961
(Ind. No. 4039/11)

[*1]The People of the State of New York, respondent,

v

Clive McMillan, appellant.




Lynn W. L. Fahey, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove and Jodi L. Mandel of
counsel; Aron Gerstel on the brief), for
respondent.


DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered July 19, 2012, convicting him of robbery in the third degree and petit larceny, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant pleaded guilty to robbery in the third degree and petit larceny with the understanding that if he successfully completed a substance-abuse treatment program, he would be permitted to withdraw his plea of guilty to robbery in the third degree, and would be sentenced to a term of probation upon his conviction of petit larceny. However, the Supreme Court explained to the defendant that if he did not complete the program, he would be sentenced to a prison term of 2½ to 5 years. It is undisputed that the defendant violated the terms of the plea agreement by leaving the treatment program without permission. As a result, the court sentenced the defendant to the enhanced term of 2½ to 5 years of imprisonment.
The defendant's purported waiver of his right to appeal was invalid (see People v Bradshaw, 18 NY3d 257, 267; People v Lopez, 6 NY3d 248, 256). However, contrary to the defendant's contention, the Supreme Court providently exercised its discretion in declining to afford him a second chance to attend the substance-abuse treatment program after he violated the plea agreement and in imposing the enhanced sentence (see People v Rodriguez, 46 AD3d 356; People v Wilson, 11 AD3d 206, 207; People v Floyd, 306 AD2d 496; see also People v Gary, 106 AD3d 932; People v Emma, 101 AD3d 1146, 1147).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
MASTRO, J.P., LOTT, AUSTIN and ROMAN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court