State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 107955 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JOSHUA J. LOVE,

Appellant.

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Calendar Date: February 11, 2016

Before: Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

__________

John A. Cirando, Syracuse, for appellant.

Mary E. Rain, District Attorney, Canton (Ramy Louis of

counsel), for respondent.

__________

Devine, J.

Appeal from a judgment of the County Court of St. Lawrence

County (Richards, J.), rendered October 21, 2013, convicting

defendant upon his plea of guilty of the crime of rape in the

third degree.

In satisfaction of a three-count indictment, defendant

pleaded guilty to rape in the third degree and waived his right

to appeal. Pursuant to the terms of the plea agreement, County

Court placed defendant on interim probation for one year and

promised to impose a sentence of probation if he successfully

completed a substance abuse treatment program. Defendant was

informed by County Court that his failure to complete the

substance abuse treatment program could result in a sentence of

imprisonment of up to four years. Defendant was discharged from
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the treatment program for allegedly fraternizing with a female

patient despite previously being directed not to be alone with

female patients. County Court denied defense counsel's request

for a hearing to dispute the basis for defendant's discharge and,

finding that it was no longer bound by the plea agreement,

sentenced defendant to a prison term of 31⁄2 years to be followed

by eight years of postrelease supervision. Defendant now

appeals.

We are unpersuaded by defendant's contention that the

appeal waiver is invalid. The record reflects that County Court

explained, and defendant acknowledged that he understood, the

separate and distinct nature of the waiver of the right to appeal

prior to executing a detailed written waiver in open court. As

such, defendant knowingly, voluntarily and intelligently waived

his right to appeal (see People v Bethea, 133 AD3d 1033, 1033

[2015]; People v Beblowski, 131 AD3d 1303, 1304 [2015], lv denied

26 NY3d 1085 [2015]). Defendant's challenge to the factual

sufficiency of the plea allocution is precluded by that valid

appeal waiver (see People v Jackson, 128 AD3d 1279, 1280 [2015],

lv denied 26 NY3d 930 [2015]; People v Bryant, 128 AD3d 1223,

1224 [2015], lv denied 26 NY3d 926 [2015]). Defendant's further

contention that the plea was not voluntary survives the appeal

waiver, but is nevertheless unpreserved as the record does not

reflect that he made any postallocution motion to withdraw his

plea (see People v Kormos, 126 AD3d 1039, 1040 [2015]). 

Next, defendant contends that his due process rights were

violated by the failure of County Court to conduct a hearing

prior to imposing the enhanced sentence. Initially, we note that

defendant's waiver of appeal does not preclude our review of this

issue (see People v Dissottle, 68 AD3d 1542, 1544 [2009], lv

denied 14 NY3d 799 [2010]). Turning to the merits, "it is not

practical to require an evidentiary hearing every time a

defendant disputes discharge from a drug treatment program for

reasons unrelated to making satisfactory progress in treatment"

(People v Fiammegta, 14 NY3d 90, 98 [2010]). However, "when a

program discharges a defendant for misconduct, the court must

carry out an inquiry of sufficient depth to satisfy itself that

there was a legitimate basis for the program's decision, and must

explain, on the record, the nature of its inquiry, its
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conclusions, and the basis for them" (id. at 98; see People v

Valencia, 3 NY3d 714, 715 [2004]). Here, defendant denied any

misconduct and alleged, among other things, that he was not

deliberately fraternizing with a female patient and that she had

followed him into a room he was cleaning. County Court

referenced a "discharge summary" in determining that no further

inquiry was required and, while it is somewhat hazy as to whether

the trial court reviewed that document, there is no question that

the People and defense counsel did so prior to sentencing. Our

review of the discharge summary discloses that it in no way

addresses defendant's assertion that the violation of program

rules on his part was inadvertent and, as such, we cannot

conclude that County Court made a sufficient inquiry into the

reasons for his discharge (see People v Fiammegta, 14 NY3d at

98-99; People v Hill, 77 AD3d 518, 518 [2010]; cf. People v

McDevitt, 97 AD3d 1039, 1041 [2012], lvs denied 20 NY3d 987

[2012]). Thus, the sentence must be vacated and the matter

remitted for resentencing. 

Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the judgment is modified, on the law and the

facts, by vacating the sentence imposed; matter remitted to the

County Court of St. Lawrence County for further proceedings not

inconsistent with this Court's decision; and, as so modified,

affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court