Opinion
CR-3975-17
02-27-2019
The PEOPLE of the State of New York, Plaintiff, v. Kenneth WILLIAMS, Defendant.
Sandra J. Doorley, Monroe County District Attorney (Constance Patterson, Assistant District Attorney, of counsel) for plaintiff. Timothy P. Donaher, Monroe County Public Defender (Krystian Opalinski, Assistant Public Defender, of counsel) for defendant.
Sandra J. Doorley, Monroe County District Attorney (Constance Patterson, Assistant District Attorney, of counsel) for plaintiff.
Timothy P. Donaher, Monroe County Public Defender (Krystian Opalinski, Assistant Public Defender, of counsel) for defendant.
Ellen M. Yacknin, J.
On August 7, 2018, the Court filed a Declaration of Delinquency asserting that defendant had failed to comply with the requirements of his August 22, 2017 conditional discharge sentence. On January 22, 2019, defendant moved for dismissal of the Declaration of Delinquency. On January 28, 2019, he moved for the Court's recusal from further proceedings in this matter.
As noted throughout this opinion, defendant's motions were based in large part on misstatements of fact. Relying on the facts supported by the Record, the Court denied defendant's motions in Court on February 11, 2019.
On February 15, 2019, the Court held a hearing to set forth the evidence of defendant's noncompliance with his sentence, to afford defendant an opportunity to respond to the evidence, and to determine whether there was a sufficient basis to conclude that defendant violated his sentence requirements. After evaluating the evidence before the Court and considering defendant's response, the Court found that defendant failed to comply with his sentence obligations. For that reason, the Court resentenced defendant to a term of three years probation. This written Decision and Order explains the legal analysis underlying the Court's verbal decisions.
PROCEDURAL BACKGROUND
On July 20, 2017, defendant pled guilty to driving while intoxicated to satisfy the charges then pending against him. On August 22, 2017, the Court sentenced Mr. Williams to one year conditional discharge. Among its sentence requirements, the Court ordered defendant to complete his recommended treatment, provide regular written reports from his treatment provider confirming his satisfactory participation in and ultimate completion of treatment, refrain from the consumption of alcohol, and pay the statutory minimum fine and surcharges. The Court also ordered defendant to appear in Court on a regular basis for compliance monitoring.
On June 6, 2018, defendant, accompanied by his retained attorney, reported to the Court that he was engaged in treatment and doing well. Consequently, the Court scheduled defendant's next compliance appearance for August 7, 2018.
Defendant first entered treatment in June 2017, but did not complete it. In late December 2017, defendant obtained a new evaluation and entered treatment a second time.
On August 7, 2018, defendant appeared in Court without his attorney. In response to the Court's inquiry, defendant stated that he did not know where his attorney was. At defendant's request, however, the Court proceeded to discuss defendant's sentence compliance with him despite his attorney's absence.
Defendant first stated that he had made a recent payment towards his fine and surcharges, and the Court told him that he still owed $ 570.00. He then gave the Court a written report from his treatment provider stating that defendant would not be permitted to complete his still on-going treatment until he satisfied his payment obligations. The Court expressed its concern, and advised defendant that because completion of treatment was a key sentence requirement, he would have to reengage with treatment immediately, either at his current provider or at a different provider. The Court also gave defendant a list of community treatment providers, and advised him that several providers in the community charged patients based on a sliding scale.
The Court then adjourned the matter to September 7, 2018 for defendant to appear with his attorney, and to give defendant additional time to comply with his sentence obligations. In addition, pursuant to NY C.P.L. § 410.30, the Court issued a Declaration of Delinquency based on defendant's failure to complete his treatment or to pay his fine and surcharges within the conditional discharge period. The Court also notified defendant's attorney of the scheduled September 7, 2018 court date.
Had the Court not issued the Declaration of Delinquency, defendant's conditional discharge period would have ended on August 21, 2018 despite defendant's failure to complete his sentence obligations. See NY Penal Law § 65.15(2).
Prior to September 7, 2018, defendant's attorney requested, and was granted, an adjournment of defendant's court appearance to September 17, 2018. On that date, defendant again appeared without his attorney. The Court informed defendant that it was troubled because defendant had still not reengaged with treatment and that he needed to appear with his attorney. The Court adjourned the matter to September 21, 2018 at 2:00 p.m. and notified defendant's attorney of the court date.
Although defendant's case was not on the Court's 9:30 a.m. docket on September 21, 2018, defendant, accompanied by an Assistant Public Defender, appeared at that time. In response to the Court's inquiry, defendant told the Court that he had appeared that morning because his "new" lawyer had told him to do so. At defendant's request and with the consent of the Assistant Public Defender, the Court at that time appointed the Public Defender's Office to represent defendant and to replace his retained attorney.
At that point, the Court advised defendant and his new attorney that it would order a Pre-Sentence Investigation Report [PSI] because defendant had failed to complete his treatment and still owed $ 570.00 towards his fine and surcharges. Because 60 days are required to prepare a PSI, the Court scheduled defendant's next court appearance for November 20, 2018.
When defendant appeared in Court on November 20, 2018, he again did not provide the Court with proof of either on-going or completed treatment. The Court then advised defendant that the 11/9/18 PSI recommended a resentence of probation "to enable the defendant to be monitored for community safety purposes and to oversee compliance with appropriate therapeutic interventions." In response, defendant's attorney told the Court for the first time that defendant had, in fact, satisfactorily completed his treatment obligations. He insisted, however, that the treatment agency refused to give defendant documentation of completion solely because he had not fulfilled his payment obligations.
Defendant's 1/22/19 Motion, p.3, n.2 insinuates that the PSI's recommendation is suspect. To support this position, the Motion quotes an 11/13/18 email from Probation Supervisor David Rogers to defendant's attorney stating that in his view, probation is inappropriate for the sole purpose of bill collections. See defendant's 1/22/19 Motion Exhibit D. Defendant's Motion fails to mention that the email also states that defendant failed to provide the requested verification of treatment completion to the probation office. Similarly, defendant's Motion fails to mention that the PSI, which was signed by a probation officer and signed and approved by a supervising probation officer, states that although defendant told the probation officer that he had finished treatment in August 2018, he failed to provide the requested verification of treatment completion.
Notably, the defense attorney's 11/13/18 reply email to Mr. Rogers states, "Im [sic] hoping if he does the can [sic] get proof he completed trx we can avoid probation." Defendant's 1/22/19 Motion Exhibit D. No proof that defendant completed treatment was ever provided to the Court.
Based on defendant's new assertion that he had actually completed his treatment, the Court adjourned the matter to December 13, 2018 to set a hearing date and to request clarification of the treatment agency's previous report to the Court. On December 13, 2018, the Court provided counsel with a November 27, 2018 report from defendant's treatment counselor stating, inter alia, that defendant:
The Court provided counsel with copies of its communications with defendant's treatment provider.
was discharged from our program on August 8, 2018 [and] was unable to complete due to a lapse in his medical insurance.... [Defendant's discharge] status was: Left against clinical advice.... Unsuccessful discharge.
Defendant's attorney argued, however, that the November 27, 2018 report did not sufficiently demonstrate that defendant did not complete his treatment. For that reason, the Court scheduled a hearing for January 3, 2019 and asked the treatment counselor to clarify her November 27, 2018 report.
For unavoidable reasons, the Court canceled the January 3, 2019 hearing and adjourned the case to January 14, 2019 to reschedule the hearing date. On January 14, 2019, the Court gave counsel a December 14, 2018 email from defendant's counselor's supervisor stating, inter alia, that according to his treatment notes, defendant last attended treatment on August 1, 2018 before he completed treatment, and never contacted the treatment agency again after he was advised that his insurance was no longer active. For that reason, defendant's treatment case was closed. The supervisor's 12/14/18 email also stated that if defendant had continued his treatment:
he would have probably had to stay another thirty (30) plus days in order to be considered for successful completion due to [his 7/6/18 positive screen for alcohol and] relapse (that he shared only when testing positive in his urine screen).
Nevertheless, based on defendant's persistent assertion that he successfully completed treatment, the Court rescheduled the hearing for January 28, 2019. On January 22, 2019, prior to the hearing, defendant filed a motion to dismiss the Court's Declaration of Delinquency. On January 25, 2019, while both the Assistant District Attorney and defendant's attorney were present in Court on other matters, the Court, on the Record, directed the Assistant District Attorney to contact defendant's treatment counselor and her supervisor to request their presence at the January 28, 2019 hearing.
On January 28, 2019, defendant did not appear in Court. Nevertheless, defendant filed a motion requesting the Court to recuse itself from further proceedings. In particular, defendant contends that the Court's impartiality is compromised because the Court directed the Assistant District Attorney to ensure that witnesses from defendant's treatment agency are available at the hearing and because the Court allegedly violated defendant's constitutional rights by depriving him of his right to counsel.
Instead of issuing a bench warrant, the Court adjourned the matter to January 29, 2019 to give defendant another opportunity to appear and to reschedule the hearing.
When defendant appeared in Court on January 29, 2019, the Court rescheduled the hearing for February 15, 2019. On February 5, 2019, the Court advanced the case to February 11, 2019 for argument of defendant's motions. Following counsel's arguments on February 11, 2019, the Court verbally denied defendant's motion on the Record. The Court held a hearing regarding defendant's alleged noncompliance with his sentence obligations on February 15, 2019.
LEGAL DISCUSSION
Recusal Motion
Defendant argues that the Court must recuse itself from this action because it directed the Assistant District Attorney to call defendant's treatment counselor and her supervisor as witnesses at the hearing in this case. By doing so, defense counsel contends, the Court demonstrated a "clash in judicial roles" that requires recusal as a matter of due process. See People v. Alomar , 93 NY2d 239, 245 (1999).
No witnesses appeared or testified on either January 28, 2019 or February 15, 2019 hearing, and there is no indication on the Record whether defendant's treatment providers were subpoenaed to appear.
Defendant's argument misapprehends the Court's role in conducting a hearing to determine whether defendant satisfactorily complied with the Court's sentence. When a Court, as here, receives information that defendant violated his sentence obligations, the Court may file, as it did here, a Declaration of Delinquency. See NY C.P.L. § 410.30. When defendant denies, as he does here, that he violated his sentence obligations, the Court must conduct a "sufficient inquiry" to determine whether the information regarding defendant's noncompliance is " ‘reliable and accurate,’ " People v. Butler , 151 AD3d 1959, 1960 (4th Dep't), lv. denied 30 NY3d 948 (2017), and to afford defendant an opportunity to refute the information. See People v. Albergotti , 177 NY3d 748, 750 (2011).
It is the Court's responsibility, not the People's, to conduct a "sufficient inquiry." Unlike a pre-trial evidentiary hearing or trial in a criminal case, in which the People are obligated to prove the charges brought by the People against the defendant, the obligation to conduct a "sufficient inquiry" to determine whether there is a legitimate basis to find that a defendant failed to comply with his or her conditional discharge sentence rests with the Court. See People v. Green , 45 AD3d 780, 780-81 (2nd Dep't 2007) (court required to conduct an inquiry sufficient to show that the information upon which court determined that defendant was discharged unsuccessfully from treatment was reliable and accurate); People v. Rivera , 32 AD3d 446 (2nd Dep't 2006).
Further, unlike an evidentiary hearing or criminal trial, "[t]he nature and extent of the inquiry — whether through a summary hearing pursuant to CPL 400.10 or some other fair means — is within the court's discretion." People v. Outley , 80 NY2d 702, 713 (1993). See People v. Kocher , 116 AD3d 1301, 1302 (3rd Dep't 2014) (so long as the court conducts "an inquiry of sufficient depth to assure itself that the information upon which it bases its sentence is reliable and accurate," a full evidentiary hearing is not required); People v. Jenkins , 29 AD3d 1177, 1178 (3rd Dep't 2006), lv. denied 9 NY3d 991 (2007) ("While the nature and extent of the [the Court's] inquiry is discretionary, it ‘must be of sufficient depth ... that the court can be satisfied ... of the existence of a legitimate basis’ " for defendant's alleged noncompliance with his sentence); People v. Semple , 23 AD3d 1058, 1059-60 (4th Dep't 2005), lv. denied 6 NY3d 852 (2006) (nature and extent of the inquiry is within the court's discretion).
The New York Court of Appeals has emphasized that even at a criminal trial, circumstances might exist, such as "a case calling for special expertise," that would "require a trial court to call its own witness." People v. Arnold , 98 NY2d 63, 68 n.2 (2002). Although the Court found that the trial court in that case abused its discretion by calling its own witness, the Arnold Court nevertheless stressed, "We do not hold that a court may never call its own witness over the objection of a party." People v. Arnold , 98 NY2d at 68.
In this case, the Court's sentence required defendant to successfully complete his treatment and to provide written proof of completion to the Court. When defendant provided a report to the Court on August 7, 2018 stating that he had not completed treatment, the Court filed a Declaration of Delinquency and gave defendant an additional opportunity to return to Court with proof that he had reengaged with treatment. When defendant failed to do so on September 21, 2018, the Court ordered a PSI, in part to obtain clarification of the status of defendant's treatment.
Defendant returned to Court on November 20, 2018 and contended for the first time, without proof, that he had, in fact, completed treatment. As a result, following that appearance, the Court appropriately contacted defendant's treatment provider to clarify the information the provider had previously provided to the Court, especially in light of defendant's new contention. Moreover, when it scheduled its inquiry hearing, the Court appropriately directed the Assistant District Attorney to ensure that defendant's treatment providers, who were in the best position to clarify defendant's treatment status, were present.
Stampfler v. Snow , 290 AD2d 595, 596 (3rd Dep't 2002), on which defendant relies, is inapposite to support his position that due process compels the Court's recusal under these circumstances. The Stampfler Court held that recusal was required where the Family Court initiated an independent criminal contempt action alleging criminal contempt under NY Judiciary Law § 753(A)(3) against a party in a previously resolved custody action, sought subpoenas duces tecum, and presided over the independent criminal contempt action, and questioned the witness, thereby demonstrating a "clash in judicial roles." Stampfler , 299 AD2d at 596.
Unlike the Family Court in Stampfler , this Court has continued to have jurisdiction over defendant to monitor his sentence compliance. Unlike the Family Court in Stampfler , this Court filed a Declaration of Delinquency against defendant in compliance with statutory procedures for a Court to monitor a defendant's sentence compliance. Unlike the Family Court in Stampfler , this Court did not initiate an independent judicial action against defendant charging him with criminal contempt for violating the Court's sentencing orders. Unlike the Family Court in Stampfler , this Court is authorized by statutory procedures, after filing its Declaration of Delinquency, to determine whether a defendant violated the conditions of his or her sentence. Unlike the Family Court in Stampfler , the Court has the discretion to circumscribe "the nature and extent of the inquiry" in this case. People v. Outley , 80 NY2d at 713.
Accordingly, the Stampfler Court's holding that the Family Court's recusal was required to avoid a clash of judicial roles has no bearing in this case. See , e.g. , People v. Alomar , 93 NY2d at 246-47 (no clash of judicial roles where criminal trial judges later presided over and participated in the trials' reconstruction hearings); People v. Saunders , 301 AD2d 869, 871 (3rd Dep't), lv. denied 100 NY2d 542 (2003) (no clash of judicial roles requiring recusal where judge, who had testified against defendant in the People's criminal trial, presided over defendant's subsequent motions to vacate his conviction and sentence under NY C.P.L §§ 440.10, 440.20 ); People v. Smith , 272 AD2d 679, 681-82 (3rd Dep't), lv. denied 95 NY2d 938 (2000) (no clash in judicial roles where criminal trial court previously presided over Family Court proceedings involving the same incident). To the contrary, under all the circumstances, the Court's procedures for conducting an inquiry of sufficient depth to satisfy itself whether defendant failed to comply with the conditions of his sentence are both reasonable and appropriate. See People v. Green , 45 AD3d at 780-81 ; People v. Jenkins , 29 AD3d at 1178 ; People v. Rivera , 32 AD3d at 446. Therefore, there is no "clash in judicial roles" that requires the Court's recusal in this matter.
Defendant inaccurately asserts in his 1/28/19 Motion, ¶ 17, that the Court's January 25, 2018 instruction to the Assistant District Attorney was made ex parte. To the contrary, the Court made its request to the Assistant District Attorney on the Record and in defense counsel's presence. The fact that defendant's attorney walked out of the courtroom while the Court was in the process of handing a duplicate copy of the treatment counselor's supervisor's December 14, 2018 email to the Assistant District Attorney does not convert its communication into an ex parte communication, let alone an improper ex parte communication. The Court had given both attorneys a copy of the this email at the earlier January 13, 2019 court appearance.
Defendant also moves for the Court's recusal on the ground that the Court violated his constitutional right to an attorney. According to defendant, the Court required him to appear in Court without a lawyer and failed to advise him of his right to counsel for seven months. See defendant's 1/22/19 Motion, pp. 2, 6, 7, 10, 11: defendant's 1/28/19 Motion, ¶¶ 6, 16. Specifically, defendant asserts that:
[the] Court's process involv[ed] seven months of requiring [defendant] to appear time after time without an attorney, when the Court knew, even if the defendant did not, that he was entitled to counsel.
Defendant's 1/22/19 Motion, p. 10. In particular, defendant claims that although the Court knew that defendant did not have legal representation, the Court required him to appear in Court without counsel on "3/1/18, 3/15/18, 3/16/18, 4/24/18, 5/22/18, 6/6/18, 8/7/18, 9/7/18, and 9/17/18." Defendant's 1/28/19 Motion, ¶ 6. According to defendant, such conduct demonstrates the Court's prejudice against him, thereby necessitating the Court's recusal.
Defendant's assertions regarding his unrepresented status are baseless. To the contrary, defendant has been represented by counsel continuously from the moment he was arraigned on May 15, 2017 to the present. According to the Court's Records, the Court appointed the Public Defender's Office to represent defendant at his May 15, 2017 arraignment. However, defendant subsequently retained private counsel to represent him from May 22, 2017 until the Public Defender's Office replaced her on September 21, 2018.
The Court's Records confirm the following history relevant to defendant's claims regarding his representation by counsel: The Court issued a bench warrant for defendant's arrest when he did not appear in Court on 2/6/18. On 2/22/18, when defendant was brought to Court on the bench warrant, the Court released defendant, directed him to return to Court with his attorney on 3/1/18, and notified defendant's attorney. On 3/1/18, defendant appeared but his attorney did not. The Court adjourned the case to 3/15/18 and notified defendant's attorney.
Prior to 3/15/18, defendant's attorney requested, and was granted, an adjournment to 3/16/18. On 3/16/18, both defendant and his attorney appeared, and the Court adjourned the matter to 4/24/18. On 4/24/18, both defendant and his attorney appeared, and the Court adjourned the matter to 5/22/18.
On 5/22/18, neither defendant nor his attorney appeared in Court. Instead of issuing a bench warrant, the Court adjourned the case to 6/6/18, and notified defendant's attorney. On 6/6/18, both defendant and his attorney appeared, and the Court adjourned the case to 8/7/18. On 8/7/18, defendant appeared but his attorney did not. The Court adjourned the case to 9/7/18 and notified defendant's attorney.
Prior to 9/7/18, defendant's attorney requested, and was granted, an adjournment to 9/17/18. On 9/17/18, defendant appeared but his attorney did not. The Court stressed to defendant that he needed to appear with his attorney, adjourned his case to 2:00 p.m. on 9/21/18, and notified his attorney to appear on 9/21/18 at 2:00 p.m. On the morning of 9/21/18, defendant appeared in Court with an Assistant Public Defender. At defendant's request, and with the Assistant Public Defender's consent, the Court at that time appointed the Public Defender's Office to represent defendant in place of his retained attorney.
The Court's Records incontrovertibly disclose that defendant has been represented by legal counsel since his arraignment. Consequently, defendant's unsubstantiated assertion that the Court intentionally deprived defendant of his constitutional right to counsel is spurious.
Rule 3.3(a)(1) of New York's Rules of Professional Conduct, 22 N.Y.C.R.R.§ 1200.0, prohibits an attorney from knowingly "mak[ing] a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer." Defendant's attorney's repeated assertions throughout his motions regarding defendant's legal representation violate this Rule.
Where, as here, there is no legal basis for recusal under NY Judiciary Law § 14 or principles of due process, a Court must examine its own discretion and personal conscience in considering a party's recusal motion. See People v. Bittrolff , 165 AD3d 690, 692 (2nd Dep't 2018) ; Christopher D.S. , 136 AD3d 1285 (4th Dep't 2016). In doing so, the Court denies defendant's motion.
Motion to Dismiss Declaration of Delinquency
Defendant's 1/22/19 Motion asks the Court to dismiss its Declaration of Delinquency on two grounds. Defendant contends, first, that the Court did not "promptly take reasonable and appropriate action to cause the defendant to appear before it for the purpose of enabling the court to make a final determination" regarding the alleged violations, as required by CPL § 410.30. He contends, second, that the Court did not order him to pay a fine or surcharges. Both contentions are meritless.
Court's Compliance with NY C.P.L. § 410.30
Defendant correctly notes that the Court issued two Declarations of Delinquency against him. The first, filed on February 7, 2018, occurred when defendant failed to appear in Court on February 6, 2018, and a bench warrant was issued. When defendant was returned to Court on the bench warrant on February 22, 2018, the Court chose to take no further action on the February 7, 2018 Declaration of Delinquency. Instead, the Court gave defendant additional time to comply with the Court's August 22, 2017 sentence requirements. As such, the Court concurs with defendant that it cannot proceed against defendant on the February 7, 2018 Declaration of Delinquency.
The same cannot be said with respect to the Court's August 7, 2018 Declaration of Delinquency. As discussed above, when defendant appeared on June 6, 2018, the written update from defendant's treatment provider indicated that he was still in treatment and doing relatively well. For that reason, the Court determined that there was no need for defendant to return to Court sooner than August 7, 2018.
On August 7, 2018, defendant gave the Court a written report from his treatment provider stating that he would not be permitted to continue his on-going treatment until he satisfied his payment obligations. Based on the report, the Court reminded defendant that as a condition of his sentence, he was required to complete his treatment, and that he could do so at the same or a different provider. The Court gave defendant its list of community treatment providers and directed defendant to return to Court on September 7, 2018 with proof that he had reengaged with treatment. The Court also informed defendant that it was filing a Declaration of Delinquency with respect to his sentence compliance.
Since then, the Court has acted promptly "to take reasonable and appropriate action to cause the defendant to appear before it for the purpose of enabling the court to make a final determination." The Court initially gave defendant one month to show that he had reengaged in treatment. When defendant did not do so at his September 7, 2018 appearance, the Court adjourned for him to appear with his attorney. At defendant's September 21, 2018 appearance with his new attorney, defendant again did not provide proof of treatment. The Court then ordered a PSI, and directed defendant to appear on November 20, 2018, the earliest date possible for the PSI's return.
On November 20, 2018, defendant asserted for the first time that defendant had actually completed his treatment. For that reason, Court adjourned the matter to December 13, 2018 to set a hearing date and to give defendant an additional opportunity to provide proof of treatment completion. On December 13, 2018, the Court gave counsel a written report from defendant's treatment provider clarifying that defendant did not complete treatment, and defendant provided no proof to the contrary. However, defendant again insisted that he had completed treatment and maintained that the provider's report was insufficient evidence of defendant's non-completion. Given defendant's adamant assertions, the Court scheduled an inquiry hearing for January 3, 2019.
As noted above, due to unavoidable circumstances, the hearing was adjourned to February 15, 2019.
Based on this chronology, it is evident that from the day the Court learned, on August 7, 2018, that defendant was discharged from treatment, the Court acted as promptly as possible under all the circumstances to take "reasonable and appropriate action to cause the defendant to appear before it for the purpose of enabling the court to make a final determination" regarding his compliance with his treatment obligations. C.P.L. § 410.30.
Defendant's Fine and Surcharges
Defendant incorrectly asserts that the Court's August 22, 2017 sentence did not include a fine or surcharges. His assertion improperly relies on a document in the Record labeled, "Orders and Conditions of Probation or Conditional Discharge Related to Ignition Interlock Device (IID)." See Defendant's 1/22/19 Motion, pp. 7-8.
As plainly set forth in both the document's title and its contents, this document, UCS-965B, specifies sentence conditions related only to a defendant's Ignition Interlock Device obligations under NY Vehicle and Traffic Law § 1193(1)(b)(ii). While it might allude to other sentence conditions, that document does not comprise the Court's sentence of defendant. Contrary to defendant's assertion, the Court's August 22, 2017 sentence, which was imposed on defendant pursuant to NY C.P.L. § 410.10(1), included a $ 500.00 fine and $ 395.00 in surcharges.
The February 15, 2019 Hearing
At the February 15, 2019 inquiry hearing, the Court set forth on the Record the written information it had received from defendant's treatment provider on August 7, 2018, November 27, 2018, and December 14, 2018 stating that defendant did not complete his Court ordered treatment. The provider's written reports specifically stated that in early August 2018, defendant was discharged from his treatment program against medical advice before he completed treatment because neither he nor his insurance was paying for his treatment. The December 14, 2018 report clarified that defendant last attended treatment prior to its completion on August 1, 2018; that he was advised by phone on August 6, 2018 to seek health insurance through New York State's government subsidized health insurance programs; and that defendant never contacted his provider again. The Court also observed that contrary to his sentence requirements, defendant did not provide the Court with written proof that he had satisfactorily completed his treatment. The Court further noted that contrary to his sentence obligations, defendant had failed to pay his fine and surcharge in full. Having set forth the information it possessed regarding defendant's noncompliance with his sentence, the Court then gave defendant an opportunity to respond.
The Court also observed that according to the provider's written December 14, 2018 report, defendant acknowledged his consumption of alcohol on July 4, 2018, in violation of his sentence requirements. Defendant's attorney maintained that because defendant's consumption of alcohol was not specified in the Court's Declaration of Delinquency, the Court was not entitled to resentence him for this violation.
Relying on Torres v. Berbary , 340 F.3d 63 (2nd Cir. 2003), defendant's attorney argued that absent an evidentiary hearing, the written reports from defendant's treatment provider is legally insufficient to find that defendant did not complete his treatment. Defendant's argument is incorrect.
In Torres , the Second Circuit held that the trial court erred when it did not conduct an evidentiary hearing before concluding that defendant violated his sentence when he was discharged from treatment for selling drugs at the treatment facility, conduct that defendant denied. In explaining its ruling, however, the Second Circuit emphasized that it was particularly disturbed by the "unique" circumstances in that case, including the:
total reliance by the trial court on a hearsay report that itself contains only uncorroborated statements of unnamed informants; [and] omission of any finding by the trial court as to the reliability of the informants or as to reasons for the non-disclosure of their identities.
Torres v. Berbary , 340 F.3d at 72.
In contrast, no such "unique" circumstances exist in this case. The written information regarding defendant's noncompliance with his treatment obligations in this case are direct, firsthand reports from his own counselor as well as a detailed summary of defendant's treatment notes prepared by his counselor's supervisor.
More importantly, in People v. Fiammegta , 14 NY3d 90 (2010), the New York Court of Appeals rejected the argument asserted here by defendant. Expressly repudiating Torres , the Fiammegta Court declined to hold that a defendant who faces an enhanced sentence upon being discharged from a drug treatment program "on account of contested allegations of wrongdoing" is entitled to an evidentiary hearing. To the contrary, the Court held that when a treatment program discharges a defendant who is required to complete treatment:
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 conclusions, and the basis for them.
People v. Fiammegta , 14 NY3d at 98. See People v. Albergotti , 17 NY3d at 750 (2011) (court not required to conduct an evidentiary hearing to determine the veracity of defendant's excuses for not complying with court-imposed obligations); People v. Bell , 162 AD3d 521, 521-22 (1st Dep't 2018) (no evidentiary hearing required where program's reliable reports established reasons for defendant's discharge from treatment program). See also People v. Malaj , 69 AD3d 487, 488 (1st Dep't), lv. denied 15 NY3d 776 (2010) ; People v. Redwood , 41 AD3d 275 (1st Dep't), lv. denied 9 NY3d 880 (2007). Accordingly, no evidentiary hearing to assess defendant's compliance with his sentence obligations was required in this action.
When given an opportunity at the hearing to respond to his treatment provider's written information, defendant offered two incompatible excuses. Initially, as he had told the Court on November 20, 2018, defendant claimed that he had actually completed his treatment, but that his provider refused to confirm his completion in writing because his insurance had lapsed. However, defendant provided no evidence to support this claim, or any evidence that his provider had a policy of refusing to provide proof of treatment completion in such situations. Further, defendant's unsubstantiated assertion that he completed treatment is controverted by his treatment provider's written reports.
Defendant next claimed that he was unable to complete treatment because he did not have insurance and was unable to afford its cost. To support his position, defendant submitted several documents demonstrating his low income and lack of resources.
The Court does not dispute defendant's financial status. However, defendant provided no evidence that he was denied health insurance coverage from New York's Medicaid program or from any other government subsidized health insurance program. Likewise, defendant provided no evidence that at any time after August 7, 2018, when the Court urged defendant to attend a different treatment program to complete his treatment, he made any effort to do so.
The Court takes judicial notice that New York State offers extremely generous government subsidized health insurance plans, including Medicaid, for no or low cost, to low-income New Yorkers. See , e.g. , "New York State of Health: The Official Health Plan Marketplace," www.nystateofhealth.ny.gov.
The Court takes judicial notice that many providers in Monroe County, New York provide health care, including treatment, to uninsured patients, and assess charges based on a sliding scale. See , e.g. , Jordan Health Center, www.jordanhealth.org/for-patients/ ("For individuals without health insurance, Jordan Health can provide a sliding fee discount based on household size and income. No patients are turned away due to financial need.")
In view of the reliable reports from defendant's treatment provider, the lack of any evidence substantiating defendant's explanations, and the implausibleness of his assertions, the Court declines to credit defendant's excuses. See People v. Albergotti , 17 NY3d 748, 750 (2011) (court not required "to conduct an evidentiary hearing to determine the veracity of defendant's excuses"); People v. Coker , 133 AD3d 1218, 1219 (4th Dep't 2015), lv. denied 27 NY3d 995 (2016) (evidentiary hearing not required to consider defendant's excuses); People v. Malaj , 69 AD3d at 488. Concomitantly, the Court concludes that the evidence of defendant's failure to comply with his treatment obligations was reliable and accurate, and sufficiently demonstrates defendant's noncompliance with his sentence. See People v. Botte , 120 AD3d 1488, 1489 (3rd Dep't 2014), lv. denied 24 NY3d 1118 (2015) ; People v. Kocher , 116 AD3d at 1302.
CONCLUSION
For the reasons stated above, defendant's motions to recuse the Court from further proceedings and to dismiss the Declaration of Delinquency are denied. Moreover, because the reliable and accurate evidence demonstrates that defendant failed to comply with his August 22, 2017 sentence obligations, the Court's resentence of defendant to probation is appropriate.
Even if it were true that defendant's financial status prevents him from completing his treatment, a sentence of probation would be an appropriate "alternate measure of punishment." People v. Hakes , ––– AD3d ––––, 2019 Westlaw 238196, *1 (3rd Dep't 2019). See People v. Amorosi , 96 NY2d 180, 184 (2001).
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SO ORDERED .