People v. Forkey

• Decision Date: 08 April 2010
• Citation: 72 A.D.3d 1209,898 N.Y.S.2d 712
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey J. FORKEY, Appellant.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 712

72 A.D.3d 1209

The PEOPLE of the State of New York, Respondent,

v.Jeffrey J. FORKEY, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

April 8, 2010.

R. Graham McNamara, Glens Falls, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), for respondent.

Before: PETERS, J.P., MALONE JR., KAVANAGH, McCARTHY and GARRY, JJ.

PETERS, J.P.

Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered April 9, 2008, convicting defendant upon his plea of guilty of the crimes of criminal possession of a forged instrument in the second degree and burglary in the third degree (three counts).

In May 2007, defendant was charged with criminal possession of a forged instrument in the second degree and criminal possession of a controlled substance in the seventh degree based on his conduct in submitting a forged prescription for Xanax tablets. A few months later, he was charged with three counts of burglary in the second degree stemming from allegations that he entered the homes of three neighbors with the intent to steal prescription medications. After waiving indictment and consenting to be prosecuted by superior court information, defendant pleaded guilty to criminal possession of a forged instrument in the second degree and three counts of burglary in the third degree and waived his right to appeal in exchange for a recommended sentence of six months in jail to be followed by five years of probation. The terms of the plea included defendant's acceptance into the Clinton County Drug Court. County Court advised defendant that, in the event that he was not accepted into the drug court program, he could be sentenced "to any sentence set forth under the law."

Thereafter, defendant entered an inpatient treatment center but was discharged due to noncompliance. As a result, his application for admission into the drug court program was rejected. After finding that defendant violated the terms of theplea agreement, County Court sentenced him to concurrent terms of six months in jail for the criminal possession of a forged instrument conviction and 2 to 6 years each in prison on two of the burglary convictions, to run consecutively to a prison term of 2 to 6 years on the third burglary conviction. Defendant now appeals.

Defendant's assertion that he was denied his right to due process when County Court failed to hold a hearing to determine whether he had violated the conditions of his plea agreement is unpreserved, since he neither requested a hearing nor moved to withdraw his plea on this ground ( see People v. Delayo, 52 A.D.3d 1114, 1115, 860 N.Y.S.2d 321 [2008], lv. denied 11 N.Y.3d 787, 866 N.Y.S.2d 613, 896 N.E.2d 99 [2008];People v. Kitchens, 46 A.D.3d 577, 578, 846 N.Y.S.2d 625 [2007], lv. denied 10 N.Y.3d 767, 854 N.Y.S.2d 329, 883 N.E.2d 1264 [2008] ). In any event, defendant was provided an opportunity to be heard and admitted to a number of the circumstances surrounding the rejection of his drug court application, including his consumption of alcohol at a bar while on a community walk and his failure to meet certain expectations of the program. Under these circumstances, County Court's inquiry...