Judge: Decision Reported Below: 4th Dept: 151 AD3d 1757 (Genesee)
Judge: Decision Reported Below: 4th Dept: 151 AD3d 1757 (Cayuga)
We reject that contention. The court did not abuse its discretion in determining that defendant was not an appropriate candidate for the program because of the lack of any connection between his criminal behavior and his substance abuse issues, his extensive criminal history, and the threat defendant posed to other program participants and the general public (seePeople v. Clarke, 155 A.D.3d 1242, 1243–1244, 65 N.Y.S.3d 578 [3d Dept. 2017], lv denied 30 N.Y.3d 1114, 77 N.Y.S.3d 339, 101 N.E.3d 980 [2018] ; People v. Chavis, 151 A.D.3d 1757, 1758, 56 N.Y.S.3d 744 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; People v. Pittman, 140 A.D.3d 989, 989, 33 N.Y.S.3d 443 [2d Dept. 2016] ; see generally CPL 216.05[3][b] ).
We reject that contention. The court did not abuse its discretion in determining that defendant was not an appropriate candidate for the program because of the lack of any connection between his criminal behavior and his substance abuse issues, his extensive criminal history, and the threat defendant posed to other program participants and the general public (see People v Clarke, 155 AD3d 1242, 1243-1244 [3d Dept 2017], lv denied 30 NY3d 1114 [2018]; People v Chavis, 151 AD3d 1757, 1758 [4th Dept 2017], lv denied 29 NY3d 1124 [2017]; People v Pittman, 140 AD3d 989, 989 [2d Dept 2016]; see generally CPL 216.05 [3] [b]). Entered: January 31, 2020
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of criminal sexual act in the first degree (Penal Law § 130.50 [4]). We agree with defendant that his waiver of the right to appeal does not encompass his challenge to the severity of his sentence (see People v Fraisar, 151 AD3d 1757, 1757 [4th Dept 2017], lv denied 29 NY3d 1127 [2017]). Nevertheless, we conclude that the sentence is not unduly harsh or severe.
We reject that contention (see generally People v Lopez, 6 NY3d 248, 256 [2006]). Defendant's valid waiver of the right to appeal does not, however, preclude him from challenging the severity of the sentence because "the record establishes that defendant waived his right to appeal before [Supreme Court] advised him of the potential periods of [postrelease supervision] that could be imposed" (People v Mingo, 38 AD3d 1270, 1271 [4th Dept 2007]; see People v Fraisar, 151 AD3d 1757, 1757 [4th Dept 2017], lv denied 29 NY3d 1127 [2017]; see generally People v Lococo, 92 NY2d 825, 827 [1998]). Still, we conclude that the sentence is not unduly harsh or severe.
We reject that contention (see generally People v Calvi, 89 NY2d 868, 871 [1996]). Defendant's valid waiver of the right to appeal does not encompass his challenge to the severity of the sentence, however, "because the record establishes that defendant waived his right to appeal before County Court advised him of the potential periods of imprisonment that could be imposed" (People v Mingo, 38 AD3d 1270, 1271 [4th Dept 2007]; see People v Fraisar, 151 AD3d 1757, 1757 [4th Dept 2017], lv denied 29 NY3d 1127 [2017]; see generally People v Lococo, 92 NY2d 825, 827 [1998]).
7, 34, 962 N.Y.S.2d 546 [4th Dept. 2013] ), petitioner has failed to demonstrate a clear legal right to the relief sought (see Matter of Carty v. Hall , 92 A.D.3d 1191, 1192, 939 N.Y.S.2d 609 [3d Dept. 2012] ; Matter of Duffy v. Jaeger , 78 A.D.3d 830, 830, 910 N.Y.S.2d 654 [2d Dept. 2010], lv. denied 17 N.Y.3d 705, 2011 WL 2566538 [2011] ; see generally Matter of Francois v. Dolan , 95 N.Y.2d 33, 37, 709 N.Y.S.2d 898, 731 N.E.2d 614 [2000] ). We further conclude that petitioner is not entitled to a writ of prohibition or declaratory relief. Those forms of relief are not appropriate where a criminal defendant may "raise legal arguments and receive appropriate relief ... in the criminal prosecution" ( Cayuga Indian Nation of N.Y. v. Gould , 14 N.Y.3d 614, 633, 904 N.Y.S.2d 312, 930 N.E.2d 233 [2010], cert. denied 562 U.S. 953, 131 S.Ct. 353, 178 L.Ed.2d 251 [2010] ). Petitioner may raise the legal arguments he now raises in an appeal from any subsequent judgment of conviction (see e.g. People v. Chavis , 151 A.D.3d 1757, 1758, 56 N.Y.S.3d 744 [4th Dept. 2017], lv. denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017]; People v. DeYoung , 95 A.D.3d 71, 77–80, 940 N.Y.S.2d 306 [2d Dept. 2012] ).It is hereby ORDERED that said petition/complaint is unanimously denied without costs.
Those forms of relief are not appropriate where a criminal defendant may "raise legal arguments and receive appropriate relief . . . in the criminal prosecution" (Cayuga Indian Nation of N.Y. v Gould, 14 NY3d 614, 633 [2010], cert denied 562 US 953 [2010]). Petitioner may raise the legal arguments he now raises in an appeal from any subsequent judgment of conviction (see e.g. People v Chavis, 151 AD3d 1757, 1758 [4th Dept 2017], lv denied 29 NY3d 1124 [2017]; People v DeYoung, 95 AD3d 71, 77-80 [2d Dept 2012]). Entered: March 16, 2018
Accordingly, as defendant satisfies all of the statutory criteria, he thus presumptively qualifies for judicial diversion. Nevertheless, the Court finds that admission to the Program is not warranted based upon the threat posed by defendant to the public's safety and welfare (see generallyPowell , 110 A.D.3d 1383, 973 N.Y.S.2d 870 [judicial diversion denied based upon defendant's extensive criminal history and risk to public safety]; Clarke , 155 A.D.3d 1242, 65 N.Y.S.3d 578 [defendant denied Program admission based upon, in relevant part, his criminal history which included a violent felony conviction]; People v. Pittman , 140 A.D.3d 989, 33 N.Y.S.3d 443 [2d Dept. 2016] [judicial diversion denied based upon defendant's threat to public safety]; People v. Chavis , 151 A.D.3d 1757, 56 N.Y.S.3d 744 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] [institutional confinement required where large amount of heroin and cash seized from defendant's home considered in conjunction with her history of narcotic sales] ). In this Court's view, the totality of defendant's dealer-like conduct — that defendant sold fentanyl-infused heroin to customers and undercover officers, had his brother engage in sales on his behalf, and consciously disregarded the potential lethal implications of selling "hot" heroin/fentanyl — surpasses his clinical diagnoses for purposes of Program eligibility.