Opinion
13597-13597A Ind. No. 3486/14 1322/16 Case No. 2017-2253
04-15-2021
The PEOPLE of the State of New York, Respondent, v. Khalil GALLOWAY, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Hannah B. Gladstein of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Hannah B. Gladstein of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), for respondent.
Renwick, J.P., Gische, Moulton, Mendez, JJ.
Judgments, Supreme Court, New York County (Maxwell Wiley, J.), rendered October 20, 2016, convicting defendant, upon his pleas of guilty, of robbery in the first degree (two counts), robbery in the second degree, attempted assault in the first degree (two counts), assault in the second degree (two counts), and bail jumping in the first degree, and sentencing him to an aggregate term of five years, unanimously affirmed.
The court providently exercised its discretion in imposing the original promised sentence after determining that defendant had violated several conditions of his plea, including participation in a treatment program. On appeal, defendant claims that his departure from the program, after two days, was not willful, but was the product of his psychiatric illness. He asserts that the court should have conducted an inquiry, and made findings, as to whether his noncompliance actually violated the plea agreement. This argument is unpreserved.
When defendant was returned for sentencing, defense counsel raised an issue as to defendant's mental condition and its effect on his noncompliance. However, this was in the context of asking the court to exercise its discretion to permit defendant to enter another program or receive a more lenient sentence than the original promise. Thus, this did not preserve a claim that, as a matter of law, defendant was entitled to an inquiry into whether he willfully absconded from the program and related matters (see People v. Hernandez, 149 A.D.3d 503, 53 N.Y.S.3d 621 [1st Dept. 2017], lv denied 29 NY3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017]). We decline to review this claim in the interest of justice. As an alternative holding, we find that the court conducted a sufficient inquiry into defendant's undisputed failure to comply with the plea agreement, made adequate findings, and providently imposed sentence (see People v. Outley, 80 N.Y.2d 702, 713–714, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993] ). On the record before the sentencing court, there were no disputed factual issues that required a further inquiry as a matter of due process (see People v. Valencia, 3 N.Y.3d 714, 786 N.Y.S.2d 374, 819 N.E.2d 990 [2004] ).
We perceive no basis for reducing the sentence, including the three-year term of postrelease supervision.