Opinion
08-0939.
Decided February 3, 2010.
Honorable Janet DiFiore, Westchester County District Attorney, County Courthouse, White Plains, New York, Attn: A.D.A. Nicholas W. DiCostanzo, Thomas Sobers No. 09-A-3053, Pro Se Defendant, Orleans Correctional Facility, Albion, New York.
Upon consideration of a motion brought pursuant to Criminal Procedure Law (CPL) § 440.20 to set aside the sentence imposed under the instant indictment, the Court has considered the notice of motion, affidavit in support and response to affirmation in opposition of the pro se defendant, and the affirmation in opposition and memorandum of law of Assistant District Attorney Nicholas W. DiCostanzo, and the instant motion is decided as follows:
In support of the present motion to set aside the sentence imposed under the instant indictment pursuant to CPL 440.20, the defendant claims that his imposed sentence is "invalid as a matter of law" due to the failure of the Department of Correctional Services (DOCS) to admit him into the Comprehensive Alcohol and Substance Abuse Treatment (CASAT) program in contravention of the terms of the sentence imposed by this Court. The defendant further claims that DOCS' denial of his application for admission into the CASAT program constitutes a failure to fulfill one of the conditions upon which he was induced to enter his guilty plea, which compels the Court to vacate his imposed sentence and re-sentence him to a reduced determinate term of imprisonment of 2 years, rather than the imposed 2½ year term, or diversion to the "Willard Program". The People oppose the defendant's instant application upon two distinct grounds, asserting that the defendant had failed to raise a recognized ground under CPL 440.20, and that the factual predicate for the defendant's instant application is materially false due to the pendency of the defendant's enrollment in the alcohol and substance abuse treatment phase of the CASAT program.
On February 26, 2009, the defendant was convicted of a single count of Criminal Possession of a Controlled Substance in the third degree in violation of Penal Law § 220.16 upon the entry of his guilty plea before this Court pursuant to a plea bargain with a sentence commitment from this Court providing for a determinate term of imprisonment of 2½ years, a term of post-release supervision of 1½ years, a mandatory surcharge of $250.00, a Crime Victim Assistance Fee of $20.00, a DNA fee of $50.00, and court-ordered enrollment in the CASAT drug treatment program. Notably absent from the Court's sentence commitment, as reflected in the stenographic record and the Court's file maintained in connection with this case, was any reference to the defendant's participation in any specific phase or phases of the CASAT drug treatment program as a condition of his plea agreement.
In connection with the execution of the defendant's sentence on June 4, 2009, this Court filed and entered an order directing the defendant's enrollment in the CASAT program in an alcohol and substance abuse correctional annex pursuant to Penal Law § 60.40(6). Upon the Court's review of the affidavit submitted by the defendant in support of the instant motion, as well as the exhibits annexed thereto, it appears that the DOCS Temporary Release Committee denied the defendant's application for presumptive work release under the CASAT program pursuant to the criteria set forth in 7 NYCRR 1951.1(5), however it also appears that DOCS Counselor Samantha Feagin advised the defendant in writing that he was going to be enrolled in the CASAT drug treatment program pursuant to the order of this Court of June 4, 2009.
Insofar as the defendant moves the Court pursuant to CPL 440.20 to set aside the sentence imposed upon him under the instant indictment, this Court notes that an imposed sentence may only be vacated pursuant to CPL 440.20 where the sentence is unauthorized, illegally imposed, or otherwise invalid as a matter of law ( see, CPL 440.20; People v. Corso, 40 NY2d 578). Here, the defendant fails to allege any facts which establish that the imposed sentence is unauthorized by law, illegally imposed or otherwise invalid as a matter of law. As the defendant has failed to allege grounds which establish a cognizable legal challenge to the propriety of the imposed sentence, the instant motion must be summarily denied ( see, CPL 440.30[a]; People v. Elliot, 187 AD2d 666, 667).
Were the Court to reach the merits of the defendant's instant application, it would note with significance that the pendency of the defendant's enrollment by DOCS into the CASAT program in an alcohol and substance abuse correctional annex as defined under Penal Law § 60.40(6) is consistent with the terms of the sentence imposed upon the defendant by this Court on June 4, 2009. To the extent that the defendant further seeks to challenge the propriety of the determination rendered by the DOCS Temporary Release Committee denying the defendant's application for presumptive work release under the CASAT program, the defendant may consider the applicability of Article 78 of the Civil Practice Law and Rules (CPLR) to the facts of this case.
Insofar as the defendant's instant application could be understood to constitute a motion brought pursuant to CPL 440.10 to vacate the judgment of conviction entered against him under the instant indictment, the Court notes that the express terms of CPL 440.10 provide that the bases upon which a judgment of conviction may be vacated are limited to those grounds provided by the statute, which include where "judgment was obtained in violation of a right of the defendant under the constitution of this State or of the United States" (CPL 440.10[h]). With respect to the claims raised by the defendant in support of the instant motion, CPL Article 440 mandates the dismissal of a motion seeking to vacate a judgment of conviction where "[a]lthough sufficient facts appear on the record of the proceedings to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal" ( see, CPL 440.10[c]; see also, People v. Baxley, 84 NY2d 208).
Although it is clear form the Court's review of the defendant's moving papers that he has not brought the instant motion to seek the vacatur of the judgment of conviction entered against him under the instant indictment pursuant to CPL 440.10, the Court has conducted an analysis of the applicability of the relief afforded thereunder in the interest of justice upon recognition and consideration of the defendant's pro se status.
As enunciated by the Court of Appeals in People v. Cooks ( 67 NY2d 100, 103), the rationale supporting the mandatory dismissal provisions of CPL 440.10[a]-[d] reflects the intention of the Legislature to prevent defendants from utilizing CPL 440.10 as a substitute vehicle for direct appeal where they were in a position to raise an issue on appeal in the first instance, but failed to do so (CPL 440.10[c]). Consequently, in order for the defendant to overcome the presumption of regularity which is conferred upon a judgment of conviction, he must demonstrate that he seeks to establish facts which are beyond the record ( see, People v. Perez, 198 AD2d 540, 541), and which, if proven, would entitle him to vacatur of the judgment of conviction entered against him ( see, People v. Williams, 237 AD2d 644, lv. denied 90 NY2d 866, citing People v. Smith, 227 AD2d 655, lv. denied 88 NY2d 994).
As the defendant's instant application is based solely upon his claim that his imposed sentence was not consistent with the Court's sentence promise upon which he relied when he entered his guilty plea in this case, all pertinent facts concerning the defendant's claim appear on the record of the proceedings in a manner sufficient to have permitted adequate review upon appeal. Specifically, the record provides all of the relevant facts concerning each and every one of the terms of the Court's sentence promise which were conveyed to the defendant immediately prior to the entry of his guilty plea on February 26, 2009. Moreover, the Court's review of the appellate record of these proceedings reveals that the defendant did not move to appeal the instant judgment of conviction with the Appellate Division, Second Department. The Court also notes through its review of the defendant's moving papers which were submitted in support of the instant motion, that he has not raised any justification for his failure to take or perfect such an appeal during the prescribed period.
Accordingly, as sufficient facts appear on the record of the proceedings underlying the instant judgment to have permitted adequate review of the claims raised by the defendant upon appeal from the judgment of conviction entered under the instant indictment, the instant motion seeking to vacate the judgment must be summarily denied ( see, CPL 440.10[c]; People v. Angelakos, 70 NY2d 670; People v. Cooks, supra at 104; People v. Hernandez, 191 AD2d 511, lv. denied 81 NY2d 1014; People v. Rossney, 186 AD2d 926; People v. Skinner, 154 AD2d 216).
Based upon the foregoing, insofar as the defendant moves this Court to set aside the sentence imposed under the instant indictment pursuant to CPL 440.20, same is summarily denied.
The foregoing shall constitute the Decision and Order of the Court.