The People, Respondent,v.Wilson Feliciano, Appellant.BriefN.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 Courtâs order of June 28, 2013, the appeal has been calendared for summary treatment pursuant to Section 500.11 of the Courtâs Rules of Practice. For the reasons stated below, the People request that the Appellate Divisionâs order be affirmed. Defendant pleaded guilty under an agreement that provided if he âsuccessfully complete[d]â the H.E.L.P./Project Samaritan program, the Office of the Special Narcotics Prosecutor (âOSNâ) would join in an application to vacate defendantâs conviction for fifth-degree drug sale and dismiss the indictment in the interest of justice. The agreement provided that â[s]uccessful completionâ included âregular attendance, compliance with the program rules and regulations, full participation in all activities designated by program staff and negative toxicology reportsâ (A232 at ¶2).1 The agreement further provided that the determination as to what constituted successful completion of the program was left to the âsole discretionâ of the prosecutor (A232 at ¶2). 1 Parenthetical references to âAâ to Defendantâs Appendix. Parenthetical references to âRAâ are to the Respondentâs 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 courtâs 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 Courtâs review, affirmance of the Appellate Divisionâs 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 (âDTAPâ). Under the original written DTAP agreement, defendantâs 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 defendantâs 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 âsuccessfully finishâ the H.E.L.P./Project Samaritan program, not to âget into troubleâ or âviolate the rules,â not to âcommit any other crimes,â and to âcooperateâ with âthe program,â âthe D-TAP program,â and âthe court.â If defendant completed those conditions, OSN agreed to vacate the plea and dismiss the indictment. âBut if [defendant] violate[d] anythingââwhether it be by violating the rules of the program, committing any other crimes, or failing to cooperateâthen 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 âto complete his treatment.â Defendantâs 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 defendantâs progress, it was noted that defendant was âdoing wellâ in the program, was âcompliant with the program rules and regulationsâ 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 rulesâhe 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 â18 months ago on March 10, 1998â and that â[s]ince then he ha[d] met the requirements for planned discharge from the program,â 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 âexpresse[d] a desire to reduce his methadone dosage and to return to workâ (RA4). Nonetheless, despite that favorable progress report, the Program Director advised Justice Soloff that âMr. Feliciano recently brought a jackknife into the facility, a violation of program policy.â Defendant âexplained that the knife was to be used to open boxesâ and âexpressed regret and remorse for having brought it to the facility.â The Program Director continued: âNonetheless, policy requires that any client bringing knives or other weapons to the facility be dischargedâ (RA4). The Program Director added that â[g]iven [defendantâs] status as an exemplary client and his important progress, this decision has been painful for him as well as for the clinical staffâ (RA4). âHowever,â the Program Director said âwe are assisting [defendant] with several referrals to vocational and employment readiness programsâ and âare also recommending on-going counseling at the Wm. Ryan Center for aftercareâ (RA4). At the court appearance the following day, September 22, 1999, defense counsel asserted that âwe are at an interesting point in this case nowâ 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, âcompleted his residential treatment which lasted about eighteen months.â 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, âthey 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.â Counsel continued, âthey have a strict rule that you canât have any kind of weapon.â Nevertheless, counsel theorized, defendantâs violation of the programâs rules âcoincided with his discharge so he completed that programâ (A40). Defense counsel then stated that he was ânot sure if the agreement with D-TAP mandated aftercare or not, but [defendant] is following throughâ and has been referred to a facility âon the lower east side for his aftercareâ (A40-A41). Counsel finished by stating that he would âlike the case to be over at this pointâ (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 ânoteâ from the assigned prosecutor âindicate[d] everything that defense counsel just stated to you.â Additionally, the prosecutor said that âthere is an after phaseâ and defendant has been referred to a facility âto complete his treatment.â 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 ârefused to be interviewed.â The prosecutor stressed the importance of defendantâs next scheduled appointment, as that âcould be his very last opportunity to get intoâ 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 âdoing wellâ and âcomplying with all the rules and regulationsâ (see A48, A52, A55, A58, A60, A64). During this period, OSN informed defendant that he was also required to obtain âvocational trainingâ (A60), get âhis GEDâ (A64), and âfind employmentâ (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: âI am looking for some closure, eventually.â The court responded, âEventually weâre all looking for closureâ (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 defendantâs 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 âstopped attendingâ the drug program at the Lower East Side Service Center and was âterminatedâ (A67; see also A71). Defendant claimed that he âwas going to the programâ and âwas doing everything.â 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 âinto a new DTAP agreementâ (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 âworth making a fuss about,â seeing as âhe is being allowed to go into this program having flunked out of several alreadyâ (A89-A90). Before releasing defendant to the Odyssey House, Justice Soloff warned defendant: âthis is your last chance. If you mess this one up you will be sentencedâ 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 Defendantâs letter submission fails to mention defendantâs 2001 arrest and conviction (see Defendantâs Letter: 5). The Court Reporterâs 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 âthe treatment program, including the after care or live-out phase of treatment,â 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 defendantâs 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 ârotated to the aftercare phaseâ on March 19, 2004 (A134). However, defendant periodically had drug lapses. For example, âdefendant tested positive for opiates on June 22nd, 2004ââthree months after he completed the in-patient drug program (A142). As for aftercare, run by CIS Addiction Services, defendant failed to report to his âgroup sessions,â 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 âlaid offâ (A151). Defendant also had accumulated some savings at one point, which he later claimed went to âpay child supportâ (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 defendantâs 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 âfailed to report to any of his scheduled group sessions,â had yet to take the GED exam, and had no job and no savings (A162-A163). Justice Soloff stated that she was âunwilling at this time to remand himâ and instructed defendant to resolve the outstanding issues with the DTAP office (A163). Justice Soloff told defendant: âYou 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.â She warned that defendant was ânot going to be able to talk [his] way out of it for very longâ 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 âdischargedâ from the CIS Addiction Services aftercare program âdue to excessive absences,â 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 âthere are real issues that some of the supervision is creatingâ which she found âdisturb[ing].â Specifically, she noted âthe length of time that we allow these cases to linger, and the bureaucracy in which we enmesh some of our clientsâ (A174). On October 26, 2005, OSN reported that following defendantâs 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 âdetox,â had âfailed the GED test,â and âremain[ed] unemployedâ (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 âludicrousâ; she noted that defendant had not been rearrested (A184). On May 3, 2006, OSN again recommended that defendant be sentenced to prison. Following his âdetoxificationâ in February, defendant never returned to the Cornerstone aftercare program and âwas dischargedâ (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 Defendantâs Letter: 8). The prosecutor said: at this point, â[w]e donât know what else to do with him other than recommend . . . he be sentenced.â Justice Soloff retorted, âConsider that a failure of imaginationâ (RA189). Justice Soloff also rejected the defendantâs 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 âdisturbingâ; yet, â[t]he reason it has lasted so long [wa]s more attributable to [defendant] than anything elseâ (A192). The judge also opined that part of âwhy this has taken so long,â was her own âreluctance to send [defendant] to jail when he has really not been the perfect client for DTAPâ (A194). Nevertheless, and although she thought the situation âludicrous,â Justice Soloff warned defendant not âto back [her] into a corner where she had to send him to state prisonâ (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 âdoing everything that heâs supposed to be doingâ (A194). In June 2006, defendant was again arrested for shoplifting, but the court offered him âone more chance.â 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 âhospitalizedâ in a âdetoxâ program for his continuing drug use. The prosecutor reiterated OSNâs 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 Defendantâs 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 defendantâs two recent arrests, continued drug use, and failure to cooperate with the DTAP officeâs efforts to place him in another aftercare program (see A202-A203, A209). Defense counsel offered excuses for defendantâs arrests and non- compliance, and asked for one âlast opportunityâ for defendant to âcomplete fully what was outlined by [the DTAP] agreementâ (A204-A206). Justice Soloff agreed to give defendant âone more chanceâ (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 âagainstâ clinical advice. At that point, the court revoked defendantâs 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 âthey never dismissed the caseâ (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 âhad a couple of problemsâ toward the end of his treatment but nevertheless sought the minimum sentence (A229-A230). Justice Soloff responded that defendant had been given âmore chances than anybody [she] c[ould] think ofâ (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 (âCASATâ) 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 defendantâs 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 âcourt properly concluded that defendant failed to meet the conditions of his plea agreementâ (A2). The majority observed that, â[o]ver a period of 8 œ years, the [trial] court gave defendant many opportunities to earn a dismissal of the indictment under the Drug Treatment Alternative to Prison programâ and that defendant âviolated the terms of his original plea agreementâ (A2). The majority further observed that â[d]efendantâs obligations under the original agreement were clearâ (A2-A3). The majority also found that defendant âdid not preserve his contention that the second plea agreement he entered into was a nullity because it contained allegedly unconstitutional postplea conditionsâ and declined to review it in the interest of justice (A3). Alternatively, the majority rejected defendantâs claim on the merits, finding that â[b]y the time defendant entered into the second agreement, he had already violated the first oneâ (A3). The majority found that, as a factual matter, â[d]efendant voluntarily agreed to the second agreementâ as an alternative to incarceration âand then violated its terms as wellâ (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, âthe facts of this case do not support the majorityâs conclusionâ that defendant had violated the terms of the original plea agreement (A4). As Justice Catterson read it, âthe first plea agreement required the defendant to successfully complete âat leastâ one year of a drug treatment program in order for his indictment to be dismissedâ (A4). Justice Catterson stated that âthe record reflects that [defendant] essentially satisfied the requirementsâ of that agreement, noting that defendant was in the first drug treatment program for 18 months and âdid wellâ prior to the date of his termination (A11) (emphasis added). Justice Catterson rejected the Peopleâs assertion, and the trial courtâs finding, that defendant had been terminated from the program due to his having brought a knife into the facility, a violation of the programâs rules. Rather, Justice Catterson accepted the defense assertion that defendantâs discharge for the weapons violation âcoincided with his discharge from residential treatment for âcomplet[ing] everythingââ (see A6, A11- A12). Given defendantâs âapparent completion of the drug treatment program,â 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 âsatisfied his obligations under the plea agreement by completing the requisite in-patient drug treatment programâ at H.E.L.P/Project Samaritan and, consequently, he was entitled to dismissal of the indictment (Defendantâs 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 âsole discretionâ to determine what constitutes successful completion, the prosecutor is âentitled to insist on strict compliance with every termâ and has âno obligation to overlook what might seem minor deficiencies.â 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 âsuccessfully complete[d]â the H.E.L.P./Project Samaritan program, as required by the original plea agreement. However, unlike the Appellate Division, this Courtâs 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 âdeterminations involve[ing] mixed questions of law and fact,â this Courtâs review is limited to whether there is evidence in the record to support the trial courtâs findings); People v. Glass, 43 N.Y.2d 283, 287 (1977) (this Court is âpowerlessâ to disturb the trial courtâs factual findings so long as âthere is relevant proof in the record to support [them]â); see also People v. Fiammegta, 14 N.Y.3d 90, 96 (2010) (âSupreme Court has broad discretion when supervising a defendant subject to DTAP, and deciding whether the conditions of a DTAP plea agreement have been metâ). 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 âbrought a jackknife into the facility,â which he stated was âa violation of program policy.â The director further informed the judge that program âpolicy require[d] that any client bringing knives or other weapons to the facility be discharged.â He added that the program was not taking the decision to discharge defendant lightly, declaring that it was a âpainfulâ decision, given that defendant had otherwise been an âexemplary clientâ (RA4). Also supportive of the factual finding were defense counselâs 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 programâs âstrict rule that you canât have any kind of weaponâ (A40). There is no question, of course, that defendant knew that he had violated the terms of his plea agreement. At defendantâs 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 âsuccessfully finishâ the drug program, but also that he was required to abide by the rules of the program, and that if he âviolate[d] the rules of the programâ or was âdischargedâ 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 defendantâs obligations under the plea included âcompliance with the program rules and regulationsâ (A232). Thus, both the Program Directorâs letter and defense counselâs admission provided legally adequate support for the factual finding that defendant had not complied with the programâs 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 Divisionâs order is appropriate. See People v. Stephens, 108 A.D.3d 414, 414 (1st Dept. 2013) (holding that âdefendantâs violation of the terms of the plea agreement was properly based upon a reliable letter from the programâs intake director and defendantâs own account of the eventsâ). In his letter submission to the Court now, defendant repeatedly asserts that he âsatisfied his obligations under the plea agreement by completing the requisite in-patient drug treatment program,â i.e., H.E.L.P./Project Samaritan, and therefore, that he was entitled to specific performance of the plea agreement by September 1999 (Defendantâs 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 defendantâs view (Defendantâs 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 defendantâs case: at the September 22, 1999 court appearance, counsel said that he would âlike the case to be over at this pointâ (A41); at the May 10, 2000 court appearance, counsel said that he was âlooking for some closure eventuallyâ (A52). Neither comment presented defendantâs 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 defendantâs claim was reviewable, his assertion that he âsatisfied his obligations under the plea agreement by completingâ 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 programâs 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 Soloffâs courtroom. There counsel âsummarizedâ the Program Directorâs letter to Justice Soloff describing the discovery of defendantâs knife and its consequences by asserting that since the program was planning to discharge him when it found the knife, ipso facto the violation âcoincided with the discharge.â Therefore, according to counsel, âhe completed the programâ (A40). Now, on appeal, defendant reprises the same leap of logic that he successfully completed the H.E.L.P./Project Samaritan program (Defendantâs 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 defendantâs discharge was anything but a favorable one, this Court only need to refer to the Program Directorâs letter, which stated that the decision to discharge defendant was âpainful for [defendant] as well as for the clinical staffâ (RA4). Remarkably, defendant not only asserts that he successfully completed the H.E.L.P./Project Samaritan in-patient program, he insists that âthe People conceded as muchâ at the trial level (Defendantâs 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 ânoteâ which had been provided from the assigned prosecutor on the case âindicate[d] everything that defense counsel just stated to youâ (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 programâs rules by bringing a knife into the facilityâa 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 âto complete his treatmentâ (A41). Defendantâs 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 defendantâs contention that the trial court âdid not specifically ruleâ that he failed the H.E.L.P./Project Samaritan program and that the issue is therefore not reviewable (see Defendantâs 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 recognizedâthat defendantâs 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 âflunked out of several alreadyâ (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 (Defendantâs 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 âsuccessfully complete the programâ (A232 at ¶2). Completing the program included âregular attendance, compliance with the program rules and regulations, full participation in all activities designated by program staff and negative toxicology reportsâ (A232 at ¶2). And, of course, when the subject of an aftercare phase arose, defense counsel never objected that defendantâs participation in it was not part of the plea understandingâneither 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 defendantâs 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 âstopped attendingâ that aftercare program and he was âterminatedâ (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, defendantâs 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 courtâs 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 programâs 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