Opinion
2016-183 S CR
12-13-2018
The PEOPLE of the State of New York, Respondent, v. Nicole ROUSSEAU, Appellant.
Scott Lockwood, for appellant. Suffolk County District Attorney (Rosalind C. Gray of counsel), for respondent.
Scott Lockwood, for appellant.
Suffolk County District Attorney (Rosalind C. Gray of counsel), for respondent.
PRESENT: JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
ORDERED that the judgment of conviction is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed to four months' incarceration; as so modified, the judgment of conviction is affirmed.
On June 19, 2009, the People charged defendant, in an information, with petit larceny ( Penal Law § 155.25 ). Defendant subsequently pleaded guilty to the charge and negotiated a drug treatment court contract, the terms of which required defendant to successfully complete a drug treatment program, following which the guilty plea to petit larceny would be vacated and defendant would be permitted to plead guilty to disorderly conduct and be sentenced to a conditional discharge. In the event defendant violated the contract, the misdemeanor conviction would stand and she would be sentenced to four months' incarceration.
The treatment program thereafter found defendant to be in breach of the treatment contract by virtue of defendant's alleged violations of the program's rules and her subsequent arrest for a variety of offenses. Nevertheless, the contract was reinstated upon defendant's agreement to continue treatment and to be sentenced to six months' incarceration should she again breach the contract. There is no dispute that defendant unilaterally withdrew from the final, "re-entry" phase of the treatment program and failed to report to the treatment court until, over two years later, she was returned to court upon the execution of a bench warrant.
Following a brief hearing at which defendant admitted to the fact of the arrest, to drug and alcohol relapses, to her unilateral withdrawal from the re-entry phase of her treatment program, and to her failure thereafter to report to the court as required by her contract, the District Court sentenced defendant to six months' incarceration. The court subsequently granted defendant's motion to vacate the sentence to permit defendant to submit a memorandum of law in support of her claim that she should be allowed to complete the treatment program in lieu of incarceration, and denied defendant's further motion to vacate the conviction in the interest of justice. After considering the parties' memoranda and declining defendant's request for further hearings, the District Court concluded that defendant had violated the treatment contract and again sentenced defendant to six months' incarceration.
Defendant argues that she was denied due process when the court declined to reopen the hearing to admit further testimony and documentary evidence. However, while defendants are entitled to due process at sentencing, "a critical stage of the criminal proceeding," and a sentencing court " ‘must assure itself that the information upon which it bases the sentence is reliable and accurate’ " ( People v Fiammegta , 14 NY3d 90, 96-97 [2010], quoting People v. Outley , 80 NY2d 702, 712 [1993] ; see e.g. People v. Catanzaro , 157 AD3d 961, 962 [2018] ; People v. Green , 45 AD3d 780, 780 [2007] ; People v. Rivera , 32 AD3d 446, 446 [2006] ), absent a disputed issue of material fact, no hearing is necessary (see People v. Valencia , 3 NY3d 714, 715-716 [2004] ; People v. Pisciotta , 105 AD3d 456, 456 [2013] ; People v. Olson , 42 Misc 3d 128[A], 2013 NY Slip Op 52152[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2013] ). Here, defendant's admissions at the hearing that, among other things, she had unilaterally withdrawn from the treatment program and had failed to appear in court until the execution of an arrest warrant, rendered further inquiry unnecessary. The court was entirely justified in relying upon the admitted facts (see e.g. People v. Valencia , 3 NY3d at 716 ; People v. Matosevic , 136 AD3d 437 [2016] ; see also People v. Shipp , 138 AD3d 1416, 1417 [2016] ; People v. Jackson , 44 AD3d 301, 301 [2007] ; People v. Griffin , 33 AD3d 561 [2006] ; People v. Suarez , 23 AD3d 282, 282-283 [2005] ; People v. Cruz , 15 AD3d 240, 240-241 [2005] ), which were corroborated by documentation from the treatment program, including a report by defendant's treatment counselor, which set forth defendant's program violations and that she had "self-discharged" from the program (see People v. Bonano , 124 AD3d 495, 495 [2015] ; People v. Rosales , 55 Misc 3d 55, 58 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ).
We also reject defendant's contention that the District Court should have granted defendant's motion to vacate the conviction and to dismiss the accusatory instrument in the interest of justice. While the motion was timely (see CPL 255.20 [1 ] [authorizing such motions "within such additional time as the court may fix upon application of the defendant made prior to entry of judgment"]; CPL 255.20 [3 ] ["the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of" a motion otherwise required to be made within 45 days of arraignment] ),
"the discretionary act to vacate a conviction in the interest of justice is to be ‘exercised sparingly and only in that rare and unusual case where it cries out for fundamental justice beyond the confines of conventional considerations’ ( People v. Harmon , 181 AD2d [34, 36 (1992) ] ). In order to exercise ... interest of justice jurisdiction, there must exist ‘special circumstances deserving of recognition’ ( People v. Chambers , 123 AD2d 270, 270 [1st Dept 1986] ). In other words [a court should not] exercise ... [that] jurisdiction absent ‘extraordinary circumstances’ ( People v. Marshall , 106 AD3d 1, 11 [2013] )" ( People v. Williams , 145 AD3d 100, 107-108 [2016] ).
Balancing the interests of defendant and of the public (see People v. Dardashtian , 52 Misc 3d 141[A], 2016 NY Slip Op 51192[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ), we do not discern a proper basis for interest of justice intervention (see People v. Berrus , 1 NY3d 535, 536 [2003] ; People v. Rickert , 58 NY2d 122, 133 [1983] ). Defendant admitted her guilt of the underlying offense and, notwithstanding her flagrant violations of her drug treatment contract, she was afforded a further opportunity to avoid a criminal record and additional incarceration. She now asks this court to grant her relief from the criminal sanction and punishment; however, she previously had every opportunity to avoid that criminal sanction and punishment but forfeited that opportunity by her own misconduct. This case does not present the necessary extraordinary circumstances warranting the relief.
However, considering all of the circumstances, including the prior periods of incarceration in relation to matters arising from her drug dependency, and her lengthy, if ultimately unsuccessful efforts in the drug treatment program, as a matter of discretion in the interest of justice, we modify the judgment by reducing the sentence imposed from six months' incarceration to four months' incarceration.
GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.