The People, Respondent,v.Wilson Feliciano, Appellant.

Brief

N.Y.Nov 13, 2013

1 DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK ONE HOGAN PLACE New York, N. Y. 10013 (212) 335-9000 CYRUS R. VANCE, JR. DISTRICT ATTORNEY September 5, 2013 The Honorable Andrew W. Klein Clerk of the New York Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. Wilson Feliciano APL-2013-00156 Rule 500.11 Submission Dear Mr. Klein: By permission of the Honorable Angela M. Mazzarelli, a Justice of the Appellate Division, First Department, defendant appeals from a December 27, 2012 decision and order of the Appellate Division, First Department, affirming a judgment of the Supreme Court, New York County, rendered on September 5, 2006. By this Court’s order of June 28, 2013, the appeal has been calendared for summary treatment pursuant to Section 500.11 of the Court’s Rules of Practice. For the reasons stated below, the People request that the Appellate Division’s order be affirmed. Defendant pleaded guilty under an agreement that provided if he “successfully complete[d]” the H.E.L.P./Project Samaritan program, the Office of the Special Narcotics Prosecutor (“OSN”) would join in an application to vacate defendant’s conviction for fifth-degree drug sale and dismiss the indictment in the interest of justice. The agreement provided that “[s]uccessful completion” included “regular attendance, compliance with the program rules and regulations, full participation in all activities designated by program staff and negative toxicology reports” (A232 at ¶2).1 The agreement further provided that the determination as to what constituted successful completion of the program was left to the “sole discretion” of the prosecutor (A232 at ¶2). 1 Parenthetical references to “A” to Defendant’s Appendix. Parenthetical references to “RA” are to the Respondent’s Supplemental Appendix. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 2 This appeal revolves entirely around the factual dispute as to whether defendant successfully completed the H.E.L.P./Project Samaritan program. The trial court’s factual finding that defendant had been discharged from the program for violating program policy, as affirmed by the Appellate Division, is supported by the record. Because that is the only legal question preserved for this Court’s review, affirmance of the Appellate Division’s order is appropriate. THE RELEVANT RECORD In March 1998, defendant pleaded guilty to selling drugs to an undercover police officer under an agreement that provided for Drug Treatment as an Alternative to Prison (“DTAP”). Under the original written DTAP agreement, defendant’s conviction would be vacated if he successfully completed the H.E.L.P/Project Samaritan program. Defendant was arrested on October 19, 1997, for having sold Xanax to an undercover officer (RA1-RA2). This was not defendant’s first brush with the law. In the twenty years prior to his arrest, defendant had accumulated 8 misdemeanor and 3 felony convictions (RA3). Accordingly, OSN referred the matter to the grand jury. By Special Narcotics Indictment 10589/97, filed January 13, 1998, defendant was charged with one count each of Criminal Sale of a Controlled Substance in the Fifth Degree and Criminal Possession of a Controlled Substance in the Fifth Degree (A14). On March 25, 1998, defendant appeared with counsel before the Honorable Brenda Soloff, and pleaded guilty to fifth-degree drug sale pursuant to a plea agreement (A16-A19). Justice Soloff informed defendant that the agreement required that he would “successfully finish” the H.E.L.P./Project Samaritan program, not to “get into trouble” or “violate the rules,” not to “commit any other crimes,” and to “cooperate” with “the program,” “the D-TAP program,” and “the court.” If defendant completed those conditions, OSN agreed to vacate the plea and dismiss the indictment. “But if [defendant] violate[d] anything”—whether it be by violating the rules of the program, committing any other crimes, or failing to cooperate—then defendant could be sentenced to a prison term of from two to four years and up to three and one-half to seven years (A17). Defendant confirmed that he understood the terms of the agreement and that he had discussed the matter with his attorney before deciding to plead guilty (A16-A18). A written plea agreement embodying those terms was executed by defendant and his attorney (A232). In pertinent part, the agreement stated that the case would be adjourned for sentence (A232 at ¶1) and that: During these adjournment periods, the defendant will enter a drug treatment program at H.E.L.P./Project Samaritan, (the program) for at least 12 months and successfully complete the program. The determination a[s] to whether the defendant has successfully completed the program is D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 3 within the sole discretion of the prosecutor. Successful completion means regular attendance, compliance with the program rules and regulations, full participation in all activities designated by program staff and negative toxicology reports (A232 at ¶2). In September 1999, defendant was discharged from the H.E.L.P./Project Samaritan program for possession of a pocket knife. He was referred to another program “to complete his treatment.” Defendant’s participation in the H.E.L.P./Project Samaritan program began with great promise, with his receiving favorable progress reports starting from his admission in March 1998 and up through August 1999. At several court appearances for an update on defendant’s progress, it was noted that defendant was “doing well” in the program, was “compliant with the program rules and regulations” and that his toxicology reports were negative (see A26, A29, A32, A37). However, in September 1999, defendant was discharged from the program when he violated program rules—he brought a knife into the facility (see A40, A45, A207). On September 21, 1999, the Program Director at H.E.L.P./Project Samaritan addressed a letter to Justice Soloff. The letter informed the court that defendant had been admitted to the program “18 months ago on March 10, 1998” and that “[s]ince then he ha[d] met the requirements for planned discharge from the program,” in that his health was stable, he was free of illicit drugs, and he regularly participated in activities and counseling. As well, the Program Director noted that defendant “expresse[d] a desire to reduce his methadone dosage and to return to work” (RA4). Nonetheless, despite that favorable progress report, the Program Director advised Justice Soloff that “Mr. Feliciano recently brought a jackknife into the facility, a violation of program policy.” Defendant “explained that the knife was to be used to open boxes” and “expressed regret and remorse for having brought it to the facility.” The Program Director continued: “Nonetheless, policy requires that any client bringing knives or other weapons to the facility be discharged” (RA4). The Program Director added that “[g]iven [defendant’s] status as an exemplary client and his important progress, this decision has been painful for him as well as for the clinical staff” (RA4). “However,” the Program Director said “we are assisting [defendant] with several referrals to vocational and employment readiness programs” and “are also recommending on-going counseling at the Wm. Ryan Center for aftercare” (RA4). At the court appearance the following day, September 22, 1999, defense counsel asserted that “we are at an interesting point in this case now” in that defendant had, D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 4 according to counsel, “completed his residential treatment which lasted about eighteen months.” Seeing as the court had apparently not yet read the letter from the Program Director at H.E.L.P./Project Samaritan, defense counsel presented his summary of the letter. As counsel saw it, “they say that [defendant] was like a stellar performing magnet, having no drug test positive, completed everything and that they would discharge him from the program and simultaneously they found in his locker, he had some form of small knife.” Counsel continued, “they have a strict rule that you can’t have any kind of weapon.” Nevertheless, counsel theorized, defendant’s violation of the program’s rules “coincided with his discharge so he completed that program” (A40). Defense counsel then stated that he was “not sure if the agreement with D-TAP mandated aftercare or not, but [defendant] is following through” and has been referred to a facility “on the lower east side for his aftercare” (A40-A41). Counsel finished by stating that he would “like the case to be over at this point” (A41). Counsel did not, however, assert that defendant had satisfied his obligations under the plea agreement and was entitled to dismissal of the indictment. Next, the prosecutor who happened to stand in the court part on that particular day simply replied that the “note” from the assigned prosecutor “indicate[d] everything that defense counsel just stated to you.” Additionally, the prosecutor said that “there is an after phase” and defendant has been referred to a facility “to complete his treatment.” The court said nothing apart from scheduling the matter for an update (A41). In December 1999, defendant entered a program at the Lower Eastside Service Center. In March 2001, defendant was again arrested for selling drugs, but was permitted to plead guilty to a misdemeanor and was conditionally discharged back to the program. In April 2001, defendant was terminated from the program. In October 1999, defendant failed to attend some appointments, which were apparently necessary to determine his eligibility for a methadone abstinence clinic (see A43). Defendant did attend his appointment on November 18, 1999, but he “refused to be interviewed.” The prosecutor stressed the importance of defendant’s next scheduled appointment, as that “could be his very last opportunity to get into” the clinic (A45). On December 22, 1999, defendant was accepted into and entered a program at the Lower East Side Service Center program (A48). For about a year, defendant was reportedly “doing well” and “complying with all the rules and regulations” (see A48, A52, A55, A58, A60, A64). During this period, OSN informed defendant that he was also required to obtain “vocational training” (A60), get “his GED” (A64), and “find employment” (A67). Although none of those conditions had been explicitly mentioned in the original plea agreement (see A232), defendant did not object to their imposition. At the May 10, 2000 court appearance, the prosecutor reported that defendant was doing well and asked for the case to be adjourned for six weeks for an update. Defense D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 5 counsel commented: “I am looking for some closure, eventually.” The court responded, “Eventually we’re all looking for closure” (A52). Defense counsel did not assert that defendant had completed his obligations under the plea agreement and was, at that moment, entitled to dismissal of the indictment. Despite defendant’s apparent progress in the program, on March 2, 2001, defendant was again arrested for selling Xanax to an undercover police officer and was charged by felony complaint with Criminal Sale of a Controlled Substance in the Fifth Degree (Penal Law § 220.31) (RA6). On April 9, 2001, defendant was permitted to plead guilty to the reduced charge of seventh-degree drug possession and was conditionally discharged to the drug program (RA7-RA9).2 By May 2001, defendant had “stopped attending” the drug program at the Lower East Side Service Center and was “terminated” (A67; see also A71). Defendant claimed that he “was going to the program” and “was doing everything.” Justice Soloff found those assertions untrue (A73). In spite of having failed two drug programs and being re-arrested for selling drugs, defendant was given another chance at rehabilitation. In February 2002, a second written DTAP agreement is executed. Rather than seek imprisonment under the plea agreement, OSN agreed to give defendant another chance at rehabilitation. On June 19, 2001 defendant was remanded on the 1997 felony, while OSN sought the possibility of getting him placed into another residential program (A73; see A75). In exchange for having given defendant a third chance at treatment, however, OSN required that defendant enter “into a new DTAP agreement” (A97). When defense counsel complained about the new agreement, Justice Soloff asked if defendant preferred two to four years in prison, the minimum under the plea agreement. Defendant chose the treatment program (A97). After months of awaiting placement, defendant was finally accepted into Odyssey House on February 6, 2002 (see A78, A82, A84, A87, A89, A92, A94, A96, A99, A102- A104, A106, A108). When defense counsel complained about how long it was taking to place defendant, Justice Soloff commented that it was not “worth making a fuss about,” seeing as “he is being allowed to go into this program having flunked out of several already” (A89-A90). Before releasing defendant to the Odyssey House, Justice Soloff warned defendant: “this is your last chance. If you mess this one up you will be sentenced” to prison (A109). The February 2002 written DTAP agreement which defendant and his attorney executed with regards to the Odyssey House program contained additional conditions that 2 Defendant’s letter submission fails to mention defendant’s 2001 arrest and conviction (see Defendant’s Letter: 5). The Court Reporter’s Office has been unable to locate the stenographic notes from the court proceeding on March 20, 2001 (A65). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 6 were not explicit in the original DTAP agreement (see A233). In addition to successful completion of “the treatment program, including the after care or live-out phase of treatment,” and having no arrests, the new agreement required that defendant complete vocational training, obtain his GED, secure full-time employment, and demonstrate an ability to live on a budget and accumulate savings (A233 at ¶¶2, 5-6). Defendant completed the in-patient phase under the second DTAP agreement, but failed to satisfy any other conditions of the agreement. In the nearly three and one-half years that followed defendant’s entrance into the Odyssey House on February 6, 2002, his compliance with the terms of the second DTAP agreement was modest and fleeting. With respect to the conditions pertaining to drug treatment, defendant completed an in-patient program and “rotated to the aftercare phase” on March 19, 2004 (A134). However, defendant periodically had drug lapses. For example, “defendant tested positive for opiates on June 22nd, 2004”—three months after he completed the in-patient drug program (A142). As for aftercare, run by CIS Addiction Services, defendant failed to report to his “group sessions,” despite the numerous reminders by the prosecutor that this was required under the second DTAP agreement (see A137, A142, A147, A156, A159). As for the other conditions of the second DTAP agreement, defendant had secured a full-time a job at one point (A147). He was later “laid off” (A151). Defendant also had accumulated some savings at one point, which he later claimed went to “pay child support” (A163). Defendant had not taken the GED examination during this period, and he gave the court various excuses for his failure to do so (see A124, A134, A139, A149, A151, A154). By June 2005, OSN lost patience with defendant’s non-compliance and thereafter repeatedly recommended that he be sentenced to prison. The court rejected those recommendations, even after defendant was arrested for shoplifting in March 2006. On June 13, 2005, OSN recommended that defendant be deemed in violation of the plea agreement and remanded for sentence. The prosecutor stated that defendant had “failed to report to any of his scheduled group sessions,” had yet to take the GED exam, and had no job and no savings (A162-A163). Justice Soloff stated that she was “unwilling at this time to remand him” and instructed defendant to resolve the outstanding issues with the DTAP office (A163). Justice Soloff told defendant: “You know and I know that you are not doing what they are asking you to do. You got to do what they want you to do.” She warned that defendant was “not going to be able to talk [his] way out of it for very long” and that although she did not want to put in him jail, she would (A164). On September 28, 2005, OSN again recommended that defendant be sentenced to three and one-half to seven years in prison. The prosecutor reported that defendant had D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 7 been “discharged” from the CIS Addiction Services aftercare program “due to excessive absences,” had not reported to the DTAP office despite prior instruction from the court, and had not obtained his GED or full-time employment (A172). Further, the prosecutor said that defendant had not been recently drug tested, so that there was no way to confirm that he was sober (A172-A173). Justice Soloff again declined to sentence defendant and again instructed defendant to speak with the DTAP office (A174). The judge opined that “there are real issues that some of the supervision is creating” which she found “disturb[ing].” Specifically, she noted “the length of time that we allow these cases to linger, and the bureaucracy in which we enmesh some of our clients” (A174). On October 26, 2005, OSN reported that following defendant’s discharge from the CIS Addiction Services aftercare program, he had been accepted into the Cornerstone Program. However, defendant failed to attend his first scheduled group session with that program. In addition, defendant still had not obtained his GED or full-time employment (A177). On February 6, 2006, OSN reported that defendant had relapsed into drug use and was in “detox,” had “failed the GED test,” and “remain[ed] unemployed” (A184; see also A206). Accordingly, the prosecutor once again recommended that the court deem defendant in violation of the plea agreement and sentence him to three and one-half to seven years in prison (A184). Justice Soloff called that recommendation “ludicrous”; she noted that defendant had not been rearrested (A184). On May 3, 2006, OSN again recommended that defendant be sentenced to prison. Following his “detoxification” in February, defendant never returned to the Cornerstone aftercare program and “was discharged” (A189; see also A206). The DTAP office set up an interview with defendant for DAYTOP Village, another out-patient program, but defendant failed to show (A189). In addition to the fact that defendant was not employed, had not obtained his GED, and was not in an aftercare program, defendant had been arrested for shoplifting (A189-A190; see Defendant’s Letter: 8). The prosecutor said: at this point, “[w]e don’t know what else to do with him other than recommend . . . he be sentenced.” Justice Soloff retorted, “Consider that a failure of imagination” (RA189). Justice Soloff also rejected the defendant’s oral application to dismiss the charges in the interest of justice (A190). The judge agreed that the length of time this case had been pending was “disturbing”; yet, “[t]he reason it has lasted so long [wa]s more attributable to [defendant] than anything else” (A192). The judge also opined that part of “why this has taken so long,” was her own “reluctance to send [defendant] to jail when he has really not been the perfect client for DTAP” (A194). Nevertheless, and although she thought the situation “ludicrous,” Justice Soloff warned defendant not “to back [her] into a corner where she had to send him to state prison” (A192-A193). By the next court appearance, the judge said, she expected D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 8 defendant to be attending the aftercare program, meeting with the DTAP office, and “doing everything that he’s supposed to be doing” (A194). In June 2006, defendant was again arrested for shoplifting, but the court offered him “one more chance.” Defendant absconded from the aftercare program and, in September 2006, the judge sentenced him to two to four years in prison. On June 14, 2006, defendant did not appear in court; it was reported that he was “hospitalized” in a “detox” program for his continuing drug use. The prosecutor reiterated OSN’s position that defendant should be remanded for sentence (A197). On June 16, 2006, defendant was again arrested for shoplifting, his second such arrest that calendar year. This time defendant was arrested for stealing over $1,000 worth of bathing suits from a boutique in Manhattan. He also was found in possession of a credit card that did not belong to him. Defendant was charged with fourth-degree grand larceny and fourth-degree possession of stolen property (RA11-RA12; see Defendant’s Letter: 8). Justice Soloff remanded defendant (A199). On June 27, 2006, OSN again recommended that defendant be sentenced to a term of three and one-half to seven years in prison in accordance with the plea agreement. The prosecutor cited defendant’s two recent arrests, continued drug use, and failure to cooperate with the DTAP office’s efforts to place him in another aftercare program (see A202-A203, A209). Defense counsel offered excuses for defendant’s arrests and non- compliance, and asked for one “last opportunity” for defendant to “complete fully what was outlined by [the DTAP] agreement” (A204-A206). Justice Soloff agreed to give defendant “one more chance” (A210-A211). Defendant was paroled to the DAYTOP Village program on August 7, 2006. On August 10, 2006, OSN reported to the court that defendant left the program “against” clinical advice. At that point, the court revoked defendant’s parole and ordered a warrant for his arrest (A220). Defendant appeared in court on August 14, 2006. He informed the court that he had walked out of the program and did not intend to return (A223). Defendant said that he had been dealing with OSN since 1997 and complained that “they never dismissed the case” (A223). The court remanded defendant (A226). On September 5, 2006, defendant appeared with counsel before Justice Soloff for sentencing. The prosecutor recommended three and one-half to seven years of imprisonment, the maximum authorized under the plea agreement (A229). Defense counsel acknowledged that defendant had “had a couple of problems” toward the end of his treatment but nevertheless sought the minimum sentence (A229-A230). Justice Soloff responded that defendant had been given “more chances than anybody [she] c[ould] think of” (A229). The judge then sentenced defendant, as a second felony offender, to two to four years in prison and ordered that he enroll in a Comprehensive Alcohol and Substance Abuse Treatment (“CASAT”) program in prison (A230). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 9 In December 2012, the Appellate Division, First Department affirmed defendant’s conviction with two justices dissenting. On December 27, 2012, the Appellate Division, First Department affirmed the judgment of conviction, over the dissent of two justices. The majority held that the trial “court properly concluded that defendant failed to meet the conditions of his plea agreement” (A2). The majority observed that, “[o]ver a period of 8 ½ years, the [trial] court gave defendant many opportunities to earn a dismissal of the indictment under the Drug Treatment Alternative to Prison program” and that defendant “violated the terms of his original plea agreement” (A2). The majority further observed that “[d]efendant’s obligations under the original agreement were clear” (A2-A3). The majority also found that defendant “did not preserve his contention that the second plea agreement he entered into was a nullity because it contained allegedly unconstitutional postplea conditions” and declined to review it in the interest of justice (A3). Alternatively, the majority rejected defendant’s claim on the merits, finding that “[b]y the time defendant entered into the second agreement, he had already violated the first one” (A3). The majority found that, as a factual matter, “[d]efendant voluntarily agreed to the second agreement” as an alternative to incarceration “and then violated its terms as well” (A3). The Honorable James M. Catterson and Angela M. Mazzarelli dissented in a separate opinion authored by Justice Catterson. Justice Catterson stated that, in his view, “the facts of this case do not support the majority’s conclusion” that defendant had violated the terms of the original plea agreement (A4). As Justice Catterson read it, “the first plea agreement required the defendant to successfully complete ‘at least’ one year of a drug treatment program in order for his indictment to be dismissed” (A4). Justice Catterson stated that “the record reflects that [defendant] essentially satisfied the requirements” of that agreement, noting that defendant was in the first drug treatment program for 18 months and “did well” prior to the date of his termination (A11) (emphasis added). Justice Catterson rejected the People’s assertion, and the trial court’s finding, that defendant had been terminated from the program due to his having brought a knife into the facility, a violation of the program’s rules. Rather, Justice Catterson accepted the defense assertion that defendant’s discharge for the weapons violation “coincided with his discharge from residential treatment for ‘complet[ing] everything’” (see A6, A11- A12). Given defendant’s “apparent completion of the drug treatment program,” Justice Catterson stated that it was error for the People to impose new conditions (A4). Therefore, Justice Catterson concluded, defendant was entitled to specific performance of his plea agreement and dismissal of the indictment (A12-A13). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 10 ARGUMENT On appeal, defendant contends that he “satisfied his obligations under the plea agreement by completing the requisite in-patient drug treatment program” at H.E.L.P/Project Samaritan and, consequently, he was entitled to dismissal of the indictment (Defendant’s Letter: 1). The applicable law is not in dispute. A defendant who has satisfied his obligations under a plea agreement is entitled to specific performance of the benefits of that agreement. See, e.g., People v. Selikoff, 35 N.Y.2d 227, 241 (1974). It is also well-settled that the People are entitled to strictly enforce the terms of the plea agreement if the defendant fails to satisfy his obligations. This Court has made clear that, where the agreement vests the prosecutor with “sole discretion” to determine what constitutes successful completion, the prosecutor is “entitled to insist on strict compliance with every term” and has “no obligation to overlook what might seem minor deficiencies.” People v. Jenkins, 11 N.Y.3d 282, 287 (2008). The entire controversy presented by this appeal, and the issue which divided the Appellate Division, is whether defendant “successfully complete[d]” the H.E.L.P./Project Samaritan program, as required by the original plea agreement. However, unlike the Appellate Division, this Court’s criminal jurisdiction in non-capital cases is limited to questions of law, not fact or equity. See CPL 470.35(1). Thus, the only legal question properly before the Court is whether the factual finding of the trial court that defendant violated the terms of his March 25, 1998 plea agreement, as affirmed by the Appellate Division, is supported by the record. See, e.g., People v. Jones, 69 N.Y.2d 853, 855 (1987) (with respect to “determinations involve[ing] mixed questions of law and fact,” this Court’s review is limited to whether there is evidence in the record to support the trial court’s findings); People v. Glass, 43 N.Y.2d 283, 287 (1977) (this Court is “powerless” to disturb the trial court’s factual findings so long as “there is relevant proof in the record to support [them]”); see also People v. Fiammegta, 14 N.Y.3d 90, 96 (2010) (“Supreme Court has broad discretion when supervising a defendant subject to DTAP, and deciding whether the conditions of a DTAP plea agreement have been met”). The September 21, 1999 letter from the Program Director addressed to Justice Soloff alone provided the necessary record support. In his letter, the director informed the judge that defendant “brought a jackknife into the facility,” which he stated was “a violation of program policy.” The director further informed the judge that program “policy require[d] that any client bringing knives or other weapons to the facility be discharged.” He added that the program was not taking the decision to discharge defendant lightly, declaring that it was a “painful” decision, given that defendant had otherwise been an “exemplary client” (RA4). Also supportive of the factual finding were defense counsel’s admissions at the September 22, 1999 court appearance that defendant was found in possession of a knife, and that having a knife was a violation of the program’s “strict rule that you can’t have any kind of weapon” (A40). There is no question, of course, that defendant knew that he had violated the terms of his plea agreement. At defendant’s plea allocution, Justice Soloff told defendant that D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 11 he was required not only to “successfully finish” the drug program, but also that he was required to abide by the rules of the program, and that if he “violate[d] the rules of the program” or was “discharged” that he would not be entitled to the benefits of the plea and would be sentenced to prison (A17). The written agreement also made clear that defendant’s obligations under the plea included “compliance with the program rules and regulations” (A232). Thus, both the Program Director’s letter and defense counsel’s admission provided legally adequate support for the factual finding that defendant had not complied with the program’s regulations and that he had thus violated the explicit terms of his plea agreement. Since there is abundant record support for the factual finding that defendant breached his plea agreement as early as September 1999, affirmance of Appellate Division’s order is appropriate. See People v. Stephens, 108 A.D.3d 414, 414 (1st Dept. 2013) (holding that “defendant’s violation of the terms of the plea agreement was properly based upon a reliable letter from the program’s intake director and defendant’s own account of the events”). In his letter submission to the Court now, defendant repeatedly asserts that he “satisfied his obligations under the plea agreement by completing the requisite in-patient drug treatment program,” i.e., H.E.L.P./Project Samaritan, and therefore, that he was entitled to specific performance of the plea agreement by September 1999 (Defendant’s Letter: 1, 2, 13, 16, 17, 18, 19). However, this claim is entirely unpreserved as defendant failed to raise it below. See CPL 470.05(2). Contrary to defendant’s view (Defendant’s Letter: 20-21), his attorney never asserted that defendant had satisfied all of the conditions of the original plea agreement and thus was entitled to dismissal of the indictment. Defendant highlights two remarks that counsel made regarding the status of defendant’s case: at the September 22, 1999 court appearance, counsel said that he would “like the case to be over at this point” (A41); at the May 10, 2000 court appearance, counsel said that he was “looking for some closure eventually” (A52). Neither comment presented defendant’s current claim to Justice Soloff. They were mere hopeful expressions by counsel that the case would come to some resolution, at some future point. They were certainly not assertions that defendant had actually satisfied all of his obligations under the plea agreement and was entitled to dismissal at that point. In any event, even assuming defendant’s claim was reviewable, his assertion that he “satisfied his obligations under the plea agreement by completing” the H.E.L.P./Project Samaritan program is anything but true. In making that claim on appeal, defendant wrongly assumes, as did Justice Catterson, that completion of the program was the only obligation he had under the plea agreement. In fact, he was obligated both to complete the program and to abide by the program’s rules and regulations, among other things. Defendant, of course, violated program policy when he brought a knife into the facility and thus was discharged from the program. Therefore, his various arguments attempting to demonstrate that he completed the in-patient program are beside the point. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 12 That being said, even if the plea agreement had required only that defendant successfully complete the H.E.L.P./Project Samaritan in-patient program, he still failed to do that. In pressing the idea that he satisfactorily completed the program despite being discharged for violating the program rules, defendant is reprising the same rhetorical sleight-of-hand his attorney performed in Justice Soloff’s courtroom. There counsel “summarized” the Program Director’s letter to Justice Soloff describing the discovery of defendant’s knife and its consequences by asserting that since the program was planning to discharge him when it found the knife, ipso facto the violation “coincided with the discharge.” Therefore, according to counsel, “he completed the program” (A40). Now, on appeal, defendant reprises the same leap of logic that he successfully completed the H.E.L.P./Project Samaritan program (Defendant’s Letter: 1, 2, 13, 16, 17, 18, 19). Of course, simply repeating the same self-serving and unfounded assertion does not make it true. Unequivocally establishing that defendant’s discharge was anything but a favorable one, this Court only need to refer to the Program Director’s letter, which stated that the decision to discharge defendant was “painful for [defendant] as well as for the clinical staff” (RA4). Remarkably, defendant not only asserts that he successfully completed the H.E.L.P./Project Samaritan in-patient program, he insists that “the People conceded as much” at the trial level (Defendant’s Letter: 16). Defendant draws this argument from his selective reading of the record. To be sure, the prosecutor who stood up in the court part on September 22, 1999 told the court that the “note” which had been provided from the assigned prosecutor on the case “indicate[d] everything that defense counsel just stated to you” (A41). But this was hardly a concession by the prosecutor that defendant had satisfactorily completed his terms under the agreement with respect to the H.E.L.P./Project Samaritan program. After all, defense counsel had just acknowledged that defendant violated the program’s rules by bringing a knife into the facility—a clear violation of the plea agreement. Moreover, defendant completely ignores that immediately after the prosecutor made her remark about the note she then stated that defendant had to attend another program “to complete his treatment” (A41). Defendant’s newfound contention that the People conceded that he successfully completed the H.E.L.P./Project Samaritan program is also impossible to reconcile with comments by the prosecutor at subsequent court appearances that defendant was terminated from the program for possessing a knife (see, e.g., A43, A45, A207). Equally remarkable is defendant’s contention that the trial court “did not specifically rule” that he failed the H.E.L.P./Project Samaritan program and that the issue is therefore not reviewable (see Defendant’s Letter: 17, citing People v. LaFontaine, 92 N.Y.2d 470 [1998]). While literally true that Justice Soloff did not specifically say it, it is perfectly clear from the totality of the record that the court accepted what the Program Director, the prosecutor, and defense counsel himself had all recognized—that defendant’s progress notwithstanding, he failed out of the program for possession of a knife and thus was in breach of the plea agreement. In fact, at the September 1, 2001 court appearance, Justice Soloff told defense counsel he was in no position to complain about how long it took to place defendant in his third treatment program given that D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 13 defendant had “flunked out of several already” (A89). The court was obviously referring to the first two programs defendant had attended, the H.E.L.P./Project Samaritan and Lower East Side Service Center programs, which defendant was terminated from for weapon possession and excessive absences, respectively. Alternatively, defendant claims that the original plea agreement required only that he complete the in-patient program at H.E.L.P./Project Samaritan and not an aftercare or outpatient program. He contends that any ambiguity in that agreement on this score should be construed in his favor (Defendant’s Letter: 18-19). This argument is also unpreserved, as defendant failed to raise it below. CPL 470.05(2). In any event, defendant wrongly assumes that the original plea agreement required only a residential treatment program. In fact, the agreement says nothing specifically about residential or in-patient care. Rather, it states that defendant was required to “successfully complete the program” (A232 at ¶2). Completing the program included “regular attendance, compliance with the program rules and regulations, full participation in all activities designated by program staff and negative toxicology reports” (A232 at ¶2). And, of course, when the subject of an aftercare phase arose, defense counsel never objected that defendant’s participation in it was not part of the plea understanding—neither he nor defendant could have been surprised that a drug treatment program includes multiple phases, such as in-patient treatment, out-patient counseling, and methadone detox. If anything, on September 22, 1999, when defense counsel broke the news to the court about defendant’s termination from the program for weapon possession, he deftly moved to get his client into an aftercare program as an alternative to prison for violation of the plea agreement. By May 2001, defendant had “stopped attending” that aftercare program and he was “terminated” (A67). And yet again defendant was not required to face the consequences. Instead, defendant was permitted to enter into a second DTAP agreement, which he also failed to honor. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 14 CONCLUSION For the reasons stated above, defendant’s judgment of conviction should not be disturbed. Defendant did not preserve in the trial court his present claim that in September 1999 he successfully completed the H.E.L.P./Project Samaritan in-patient drug-treatment program and thus was entitled to dismissal of the indictment. In any event, the trial court’s factual finding that defendant violated the terms of the original plea agreement, as affirmed by the Appellate Division, was supported by the record. After all, defense counsel informed the trial judge that defendant was discharged from H.E.L.P./Project Samaritan for bringing a knife into the facility, in derogation of the program’s rules and the explicit terms of his oral and written plea agreements. Since that is the only legal issue even arguably up for review, affirmance is appropriate. Respectfully submitted, Martin J. Foncello Assistant District Attorney Phone: (212) 335-9335 Fax: (212) 335-9288 foncellom@dany.nyc.gov CC: Laura Boyd, Esq. The Legal Aid Society - Criminal Appeals Bureau 199 Water Street New York, New York 10038