People v. Waite

• Decision Date: 10 July 2014
• Citation: 990 N.Y.S.2d 126,2014 N.Y. Slip Op. 05216,119 A.D.3d 1086
• Parties: The PEOPLE of the State of New York, Respondent, v. James WAITE Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 1086

990 N.Y.S.2d 126

2014 N.Y. Slip Op. 05216

The PEOPLE of the State of New York, Respondent,

v.James WAITE Jr., Appellant.

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

July 10, 2014.

Erin C. Morigerato, Albany, for appellant.

Alexander Lesyk, Special Prosecutor, Norwood, for respondent.

Before: PETERS, P.J., STEIN, ROSE, EGAN JR. and CLARK, JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered October 3, 2011, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the fourth degree.

In October 2009, defendant was indicted and charged with one count of criminal possession of stolen property in the fourth degree. Defendant pleaded guilty to the charged crime in February 2010—with the understanding that he would be placed on interim probation supervision for a period of one year and, if successful, would receive a sentence of probation. The matter then was adjourned for sentencing.¹ Based upon information contained in the presentence investigation report, County Court ordered that defendant be drug tested. When defendant was caught attempting to substitute a urine sample and thereafter tested positive for cocaine and opiates, County Court revoked the underlying plea agreement and, in April 2010, sentenced defendant to 1 1/4 to 3 3/4 years in prison.

In July 2010, County Court granted defendant's pro se CPL article 440 motion to vacate the enhanced prison sentence and placed defendant on interim probation supervision for one year. In conjunction therewith, defendant was provided with a copy of the conditions of his supervision, which he signed and acknowledged. Defendant also was advised that if he complied with such terms and conditions, he would be sentenced to five years of probation; if he failed to comply, he would be sentenced to the period of imprisonment previously imposed. Thereafter, in July 2011, County Court was advised that defendant had violated the conditions of his interim probation supervision by, among other things, failing to report to his probation officer and receiving an “incomplete” discharge with respect to his outpatient addiction treatment, and a bench warrant was issued. When defendant was returned to County Court on the bench warrant in October 2011, he readily admitted that he initially had “a little problem with the outpatient [treatment] thing” and, prior to the expiration of the interim probation supervision, “just stopped going to probation.” As a result, County Court sentenced defendant to a prison term of 1 1/4 to 3 3/4 years. This appeal by defendant ensued.

We affirm. Defendant initially contends that his plea was involuntary becauseCounty Court failed to apprise him of the terms and conditions of his interim probation supervision. Defendant's initial—and ultimately successful—CPL article 440 motion made no mention of this alleged defect,² however, and the record does not reflect that, subsequent to the July 2010 court appearance at which such terms and conditions were imposed, defendant moved to withdraw his plea or vacate the judgment of conviction upon this ground. Accordingly, this issue is not preserved for our review ( see People v. Musser, 106 A.D.3d 1334, 1335, 965 N.Y.S.2d 248 [2013],lv. denied22 N.Y.3d 997, 981 N.Y.S.2d 3, 3 N.E.3d 1171 [2013] ). In any event, a review of County Court's July 2010 colloquy with defendant reveals that defendant was advised as to the length of his interim probation supervision, executed an acknowledgment of the terms and conditions thereof and was informed that his failure to abide by such conditions would result in the imposition of a prison sentence ( see People v. Wissert, 85 A.D.3d 1633, 1633, 924 N.Y.S.2d 909 [2011],lv. denied17 N.Y.3d 956, 936 N.Y.S.2d 82, 959 N.E.2d 1031 [2011] ).

As to the propriety of the enhanced sentence imposed, to the extent that defendant contends that County Court failed to comply with the provisions of CPL 410.70, we note that those provisions “do not apply where, as here, there has been no sentence of probation. Indeed, interim probation supervision is imposed prior to sentencing ... [and, therefore,] the presentence procedures set forth in CPL 400.10 apply” ( People v. Rollins, 50 A.D.3d 1535, 1536, 856 N.Y.S.2d 417 [2008],lv. denied10 N.Y.3d 939, 862 N.Y.S.2d 345, 892 N.E.2d 411 [2008] [citations omitted] ). In this regard, although defendant now contends that County Court failed to conduct a sufficient inquiry into the circumstances surrounding his alleged violation of the conditions of his interim probation supervision, thereby depriving him of a meaningful opportunity to respond thereto, the record does not reflect that defendant requested a hearing on this issue or moved to withdraw his plea upon this ground. Accordingly, this argument is unpreserved for our review ( see People v. Wachtel, 117 A.D.3d 1203, 1203, 984 N.Y.S.2d 699 [2014];People v. Paneto, 112 A.D.3d 1230, 1231, 976 N.Y.S.2d 745 [2013];People v. Stubbs, 75 A.D.3d 664, 664, 905 N.Y.S.2d 678 [2010];...