The People, Respondent,v.Wilson Feliciano, Appellant.BriefN.Y.Nov 13, 2013To be argued by LAURA BOYD New York Supreme Court APPELLATE DIVISION -- FIRST DEPARTMENT PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- WILSON FELICIANO, Defendant-Appellant. BRIEF FOR DEFENDANT -APPELLANT LAURA BOYD Of Counsel STEVEN BANKS Attorney for Defendant- Appellant 199 Water Street 5TII Floor NewYork,N.Y.10038 (212) 577-3571 email@example.com TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT ................... 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS The Offense and Plea Appellant's Program Participation Sentence . . . . . . . . . . . . . ARGUMENT POINT I APPELLANT IS ENTITLED TO SPECIFIC PERFORMANCE OF HIS PLEA BARGAIN WHERE HE COMPLIED WITH THE PLEA AGREEMENT BY COMPLETING SUCCESSFULLY AN IN-PATIENT AND AFTERCARE PROGRAM. U.S. CONST., AMENDS. V, VI, 2 2 4 20 XIV; N.Y. CONST., ART. I, §§ 2, 6 .......... 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 33 ADDENDUM STATEMENT PURSUANT TO RULE 5531'. . . . . . . . . . . 1A i TABLE OF AUTHORITIES CASES Innes v. Dalsheim, 864 F. 2d 974 (2~ Dept. 1988) ........... . 23,24,27,30,31 Matter of Benjamin S. , 55 N.Y. 2d 116 (1982) . . 23 Matter of Chaigis v. State Lig. Auth. , 44 N. Y. 2d 57 (1978) . . . . . . . . . . . . 32 Morrissey v. Brewer, 408 U.S. 471 (1972) 25 People v. Avery, 85 N. Y. 2d 503 (1995) . . 26 People v. Callahan, 80 N. Y. 2d 273 (1992) 28 People v. Carrion, 880 N.Y.S.2d 864 (1st Dept. 2009) 33 People v. Curdge1, 83 N. Y. 2d 862 (1994 ) 27 People v. Danny G. , 61 N. Y. 2d 169 (1984) 23,31,32 Peogle v. Evans, 58 N. Y. 2d 14 (1982) 27 People v. Grant, 243 A. D. 2d 358 ( 1't Dept. 1997) 26 People v. Jackson, 272 A. D. 2d 342 (2d Dept. 2000) 26 People v. McConnell, 49 N.Y.2d 349 (1980) .. 23,27,31,32 People v. McDermott, 68 A. D. 3d 1453 (3d Dept. 2009) 28 People v. Outley, 80 N. Y. 2d 702 (1993) 25 Peogle v. Parker, 271 A.D.2d 63 (4 th Dept. 2000) 26 People v. Rodney E., 77 N. Y . 2d 672 (1991) 25 People v. Rodriguez, 289 A.D.2d 512 (2d Dept. 2001) 24 People v. Selikoff, 35 N. Y.2d 227 (1974) 26,31,32 People v. Spina, 186 A.D.2d 9 ( 1't Dept. 1992) 25,30 Santobello v. New York, 404 U.S. 257 (1971) . 23,24,26,30,31 ii Spence v. Superintendent, 219 F.3d 162 (2~ Cir. 2000). 24,31 Torres v. Berbary, 340 F.3d 63 (2~ Cir. 2003) 23,24 United States v. Alexander, 869 F.2d 91 (2nd Cir. 1989) . . . . . . . . . .. .... . ... 23,26,31 CONSTITUTIONAL AUTHORITY N.Y. Const., Art. 1, §§2, 6 22,23 U.S. Const., Amends V, VI, XIV 22,23 iii SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT --------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- WILSON FELICIANO, Defendant-Appellant --------------------------------------x PRELIMINARY STATEMENT This is an appeal from a judgment of the Supreme Court, New York County, rendered September 5, 2006, convicting appel- lant. after a plea of guilty. of the crime of criminal sale of a controlled substance in the fifth degree [P. L. §220. 31] . Appellant was sentenced, as a second felony offender, to 2 to 4 years in prison (Soloff, J., at plea and sentence). Notice of appeal was timely filed on September 21, 2006. On March 27, 2007, this Court granted appellant permission to prosecute his appeal as a poor person and assigned Steven Banks as counsel. By order dated May 8, 2008, this Court enlarged the record to include the minutes of the adjourn dates between May 20, 1998, and August 14, 2006. This office last received minutes pursuant to this order on June 30, 2011. Appellant has completed his sentence. No application has been made for stay of the judgment pending appeal. 1 QUESTION PRESENTED 1. Whether appellant is entitled to spe- cific performance of his plea bargain where he complied with the plea agreement by completing successfully an in-patient and aftercare program. U.S. Const., Amends. V, VI, XIV; N.Y. Const., Art. I, §§ 2, 6. STATEMENT OF FACTS The Offense and Plea By Indictment No. 10589/97, appellant was charged with criminal sale and possession of a controlled substance in the fifth degree (Ind. No. 10589/97, Supreme Court file) . On March 25, 1998, appellant pled guilty to the criminal sale count in full satisfaction of the indictment (P. 2, 5) 1 On pleading guilty, appellant admitted that, on October 19, 1997, in New York County, he knowingly and unlawfully sold a controlled substance to a police officer (P. 4). In exchange for his plea, appellant was allowed to enter the Samaritan Program and, if he cooperated with and successfully completed the program without getting into trouble, violating the rules, or committing new crimes, the prosecutor would consent to vacating appellant's plea and 1 Numbers preceded by "P." refer to the pages of the plea entered on March 25, 1998. Numbers preceded by "S." refer to the sentencing minutes dated September 5, 2006. 2 dismissing the charge (P. 3). If he violated these condi- tions, did not cooperate with the program or the court, or was discharged from the program, then he would be sentenced to a prison term between two to four years to three and a half to seven years (P. 3). Upon entering his plea, appellant signed a written plea agreement (P. 2; Plea Agreement dated March 25, 1998).2 The agreement required, inter alia, that appellant participate in (for at least 12 months) and successfully complete the H.E.L.P./Project Samaritan drug treatment program. Successful completion meant "regular attendance, compliance with the program rules and regulations, full participation in all activities designated by program staff and negative toxicology reports" (Plea Agreement dated March 25, 1998, 'lI2). If appellant violated the court's conditions, failed to appear in court when required, failed to cooperate with the Probation Department, or was rearrested, the People would recommend that the court sentence appellant to 3~ to 7 years in prison (Plea Agreement dated March 25, 1998, 'lI6). If appellant success- fully completed the program and committed no new crimes, the People would agree to dismissal of the indictment (Plea Agreement dated March 25, 1998, 'lI7). 2 Copies of plea agreements dated March 25, 1998, and February 5, 2002, were obtained from defense counsel and will be provided under separate cover. 3 Appellant's Program Participation After entering treatment, appellant was reportedly "doing well" and was "compliant with the program rules and regula- tions" as of November 4, 1998 (minutes dated November 4, 1998). He continued "doing well" in the program as reported on January 13, 1999 (minutes dated January 13, 1999). By June 2, 1999, appellant, who continued "doing very well" and tested negative for drugs, told the court that he understood that the case was supposed to have been dismissed in April. The court responded that it would only be dismissed when appellant completed the program to which appellant responded "[tJhere's no completion in the program" (minutes dated June 2, 1999, p. 2). Appellant continued doing well in treatment and testing negative for drugs though August 25, 1999 (minutes dated August 25, 1999). Appellant next appeared in court on September 22, 1999, having completed his residential treatment over the last 18 months. Defense counsel informed the court that program update characterized appellant as 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 that he had opened boxes for his relatives. He got boxes from Puerto Rico and he had a ceilin (sic) fan and everything 4 that was in the boxes. They said they confirmed it but they have a strict rule that you can't have any kind of weapon. But, it coincided with his discharge so he completed that program (minutes dated September 22, 1999, p. 2). Although defense counsel was "not sure if the agreement with D-Tap mandated an aftercare or not," counsel informed the court that appellant had nonetheless gotten a referral to the El Regresso program for aftercare treatment. Defense counsel requested "the case to be over at this point but it's been so long" (minutes dated September 22, 1999, pp. 2-3). The prosecutor confirmed that her notes comported with what defense counsel had said except, the prosecutor asserted, that there was an "after phase" requirement and that appellant had "been sent to El Regresso to complete his treatment." In response to the prosecutor's request for additional time, the court adj ourned the case for another month (minutes dated September 22, 1999, p. 3) Ov~r the next about eight months, appellant sought treatment at a methadone clinic and entered the Aspire program where he again did well with his treatment and complied with the program rules and regulations (minutes dated October 20, 1999, December 14, 1999, January 19, 2000, and May 10, 2000). By May 10, 2000, defense counsel informed the court that appellant had been in the program for about two and a half 5 years and he was "looking for some closure, eventually." The program, however, had not provided an update letter. Noting that appellant "kept getting bounced around [and elventually we're all looking for closure," the court adjourned the case (minutes dated May 10, 2000). On the next date, appellant provided the court with a letter from the Lower East Side Services Center which stated that appellant was doing fine. The prosecutor, however, requested an update from Aspire and that appellant go to the Alternative Sentencing Bureau. The prosecutor also reminded the court that "the only other thing" he had was that appel- lant had not yet gotten off the methadone. The court ad- journed the case (minutes dated June 21, 2000). Over the next three months, appellant's case was ad- j ourned twice even though he continued to do well in the program. On September 28, 2000, the prosecutor told the court that appellant was about to meet with vocational counselors and asked the court t,o remind him "that he must obtain that vocational training." The court adjourned the case for two more months (minutes dated August 2, 2000, and September 28, 2000) . In January 2001, appellant was still doing well at the Lower East Side Methadone abstinence clinic and his methadone was reduced to five milligrams. The prosecutor now asked the 6 court to remind appellant that he must obtain his General Equivalency Diploma (GED). The prosecutor also requested that the court tell appellant that he could not remain on zanaz (sic) as there are other medications which do not cause a positive toxicology. The court responded that it "absolutely decline[d] to give [appellant] medical advice" and adjourned the case (minutes dated January 23, 2001). On May 15, 2001, the prosecutor stated that appellant had stopped attending treatment following his last court date3 and had been terminated. Moreover, the prosecutor stated, that appellant had been informed numerous times that he had to get his GED, complete vocational training, and find employment, but had not done so. In addition, the prosecutor stated, that appellant had applied for SSI without providing the People with medical documentation as to the basis for the application and that, since he had not undergone toxicology testing since March, the People could not attest to appellant being drug- free. Since the program appellant,had been attending would not take him back, the prosecutor asked that appellant attend another treatment program. The proceedings were delayed so that defense counsel could be present and, after an off-the- record discussion, the case was adj ourned and counsel and 3 Although this Court enlarged the record to in include, inter alia, the minutes of March 20, 2001, appellate counsel has been unable to obtain these minutes. 7 appellant were directed to contact the DTAP personnel (minutes dated May 15, 2001, pp. 2-3). When appellant appeared, without counsel, on June 19, 2001, the prosecutor asserted that appellant was not in a program and that, while being reprocessed into the last program he had attended, he was uncooperative. Appellant disputed these allegations, explaining that he had been in the hospital with liver problems and had called and left a message for the prosecutor to that effect. The court remanded appellant and adjourned the case (minutes dated June 19, 2001). Appellant appeared again without counsel a week later and the prosecutor informed the court that they were arranging to place appellant in another residential treatment facility (minutes dated June 26, 2001). Still ailing and incarcerated, appellant, who was accepted into the St. Elizabeth's program, was awaiting transfer to program as of July 19, 200l. Defense counsel noted that appellant had been produced so that he could complete paperwork but he waited eleven hours and no one had showed up (minutes dated July 19, 2001). On August 8, 2001, the prosecutor was still awaiting medical documentation and clearance for appellant's participa- tion in St. Elizabeth Ann's hospital program (minutes dated August 8, 2001). After two more appearances, the court was 8 advised, on September 7, 2001, that appellant had been interviewed and found medically inappropriate for the program and a further interview of appellant was scheduled (minutes dated August 15, 2001; September 7, 2001). On September 21, 2001, the prosecutor informed the court that appellant had been approved for placement and, due to the recent events, they needed more time to arrange for a bed. Given that appellant had been incarcerated for four months waiting for placement, defense counsel urged the prosecutor to move "as quickly as possible" to resolve the matter. The court responded that, since appellant had flunked out of several programs already and, given the circumstances that created the delay counsel, should not make a "fuss about it" (minutes dated September 21, 2001). On October 16, 2001, defense counsel again implored the prosecutor to get appellant into a program and the court directed the People to resolve the situation with DTAP (minutes dated October 16, 2001). Five weeks later, the court told appellant that he had to provide documentation that he was completely off methadone in order to go into the program (minutes dated November 26, 2001) . Appellant was still not placed in a program as of December 17, 2001, ostensibly because the DTAP office had just learned of appellant's medical condition and required more 9 information. Defense counsel responded that he and appellant were here the last three for proof from my client detoxed off of methadone. times in court to show he was The same let- ter I handed this court a month and a half ago and re-sent about two weeks ago is the letter. Now, they have accepted that he is off detox, the exact same letter. They got it three times. It is okay the first time, it is not okay. Now, all of a sudden they say he is dia- betic and they need to know what kind of medicine he is on. He was interviewed by DTAP and by this program and they filled out pages after pages of his medical history. They are saying now for the first time because he is diabetic -- this case is going on forever. It is over six months. They said they would have him in a program right away. He is in a really bad medical condition. I think they are just playing a game at this point. I think it ridiculous (sic). I don't think they want to help him. They want him to enter in DTAP and into a new DTAP agree- ment. The court then offered appellant a sentence of two to four years in prison to which counsel responded that appellant ~still wants the program" and that he would pursue the matter further with the assigned assistant (minutes dated December 17, 2001). When appellant next appeared, the prosecutor explained that he did not have the requisite letter for Project Return regarding appellant's diabetic condition because appellant had been transferred to a hospital unit. After appellant stated that he had the letter in the facility, the court adjourned 10 the case (minutes dated January 10, 2002). On the next adjourn date, defense counsel informed the court that Project Return would not accept appellant, who had now been incarcer- ated for eight months, made it difficult for because they claimed that appellant them to give him his intravenous insulin, something defense counsel vehemently disputed. The court adjourned the case after the People stated that appel- lant had an interview scheduled with Odyssey House (minutes dated January 24, 2002). On February 5, 2002, the court stated that appellant would be picked up by Odyssey House the next day (minutes dated February 5, 2002). On that date, appellant signed a new plea agreement but the court made no reference to it. The written agreement required, inter alia, that appellant participate in (for at least 18 months) and successfully complete the Odyssey House drug treatment program. Successful completion included "completion of vocational educational training, obtaining a General Equivalency Diploma (GED) , securing full-time employment, demonstration of an ability to live on a budget and accumulate savings, and finding suitable housing .. " (Plea Agreement dated February 5, 2002, iil,2). When appellant was picked up by Odyssey House the next day, the court told appellant that this was his last chance and that the court would impose sentence if he "mess [ed] this one 11 up" (minutes dated February 6, 2002). Appellant remained at Odyssey House for over two years doing well in treatment (minutes dated March 6, 2002; Minutes dated September 12, 2002; November 7, 2002; January 9, 2003; May 1, 2003; June 26, 2003; September 4, 2003; October 30, 2003, March 23, 2004).' As of June 26, 2003, the prosecutor stated that appellant still had to enter a GED program to which the court responded that there was a shortage of such programs and that it may be delayed (minutes dated June 26, 2003, p. 2). As of March, 19, 2004, appellant moved into the aftercare phase of treatment even though he had not obtained his GED. The prosecutor stated that appellant had to provide pay stubs and proof of savings to the Alternative Sentencing Bureau. In addition, the prosecutor stated that he had to enroll in aGED course and he had to remain in the aftercare program until he obtained his GED (minutes dated March 23, 2004, p. 2). After missing some group sessions, by May 24, 2004, appellant, who was doing very well, had accumulated saving and provided his , While the minutes dated January 8, 2004, indicate that appellant was remanded, these minutes appear to be in error since the court file indicates that appellant appeared on that date for a program update and the minutes of the next adjourn date, March 4, 2004, indicate appellant was still doing well in the program (minutes dated January 8, 2004; March 4, 2004). In addition, the attorney listed as representing appellant on January 8, 2004, had no affiliation with this case. 12 pay stubs. Noting that appellant had been going through the process for about two and one half years, defense counsel stated they were "hoping that this was coming to an end" (minutes dated April 20, 2004, May 24, 2004, pp. 2-3) On July 19, 2004, the prosecutor noted that appellant had tested positive for opiates in June and had missed nine group sessions. Appellant told the court that he had a relapse and had missed sessions due to a problem with his insurance. The problem, however, had been resolved and he was now attending the session (minutes dated July 19, 2004, pp. 2-3). Thereaf- ter, appellant continued in the aftercare program (Minutes dated August 6, 2004, September 22, 2004, November 17, 2004). Although he was employed as a driver, in November 2004, the prosecutor asked the court to remind appellant that "he has to take and pass the GED exam before he can complete the program" (minutes dated September 22, 2004, November 17, 2004). After being laid off in November 2004, as of January 2005, appellant was still in the program and looking for employment. The prosecutor told the court that "for the case to be dismissed, we're just waiting for him to get a full time job, his GED and savings and savings account" (minutes dated January 11, 2005, January 25, 2005). In March 2005, appellant informed the court that he was about to take his GED exam. Moreover, with respect to his missing group session, appellant 13 explained that there was a conflict with his GED classes and he was trying work things out (minutes dated March 22, 2005). In May 2005, noting that appellant had not reported to all group sessions, the prosecutor informed the court that appellant was trying to find work and was preparing to take the GED exam in June (minutes dated May 17, 2005). On the next adjourn date, appellant appeared without counsel; the prosecutor asked the court to remand appellant and impose sentence because appellant had not reported to any of his group sessions. The prosecutor asserted that, on the last adjourn date, appellant was instructed to have perfect attendance (minutes dated June 13, 2005, p. 2). The court, however, had not instructed appellant to that effect on the prior date (minutes dated May 17, 2005). Appellant explained that he had stopped reporting because his medicaid had been terminated. According to the prosecu- tor, appellant's counselor instructed appellant to reapply for medicaid and continue attending the program while waiting for his medicaid card. The prosecutor also noted that appellant had not undergone recent drug testing, had not yet taken his GED exam and, although he continued to look for work, he failed to obtain full time employment and maintain savings. Based on these circumstances, the prosecutor asked that appellant be remanded (minutes dated June 13, 2005, pp. 2-3). 14 The court responded to the prosecutor stating "[w]ere this case not from 1997 I might listen a little harder to that application." Noting the age of the case and the "struggle" appellant has had, the court was unwilling to remand him. Instead, it gave appellant a chance to speak with D-Tap about the situation (minutes dated June 13, 2005, p. 3). Recogniz- ing that appellant was not doing what was being asked of him, the court admonished appellant to do so or he would be incarcerated (minutes dated June 13, 2005, pp. 3-4). Within a month, appellant registered to take his GED exam (minutes dated July 11, 2005, p. 2). In September 2005, the prosecutor reported that appellant had been discharged from the program in August due to excessive absences. While the prosecutor requested that the court adjourn the case for sentencing, the court directed that appellant report to the Alternative Sentencing Bureau instead (minutes dated September 7, 2005). When appellant appeared next, the prosecutor informed the court that appellant had not reported to their office and thus they did not have any update on his progress. Given his non- compliance, the People asked the court to sentence appellant to 317 to 7 years incarceration as per the plea agreement (minutes dated September 28, 2005, pp. 2-3). Defense counsel responded that appellant had a job. As for his missing 15 appointments, counsel stated that, with his GED and commit- ments, there was "an over lapse (sic) on the times and dates [and] he can't be in both places at once." He tried to explain this to the personnel at the prosecutor's office and they responded that "they would look into it." With respect to his meeting with D-Tap, appellant maintained that he did go there but that he was kept waiting for hours and ultimately had to leave because he was not feeling well and had to take his insulin. As for his GED exam, appellant told the court that he was still waiting for the date to be set (minutes dated September 28, 2005, p. 3-4, 5). Rej ecting the prosecutor's request that appellant be sentenced, the court directed appellant to appear at D-tap. Defense counsel noted that appellant was going on eight years since his plea and that he thought the "GED might be the last final thing." In response, the court stated I think that there are real issues that some of the supervision is creating and it's beginning to disturb me mightily. And one of them is the' length of time that we allow these case to linger, and the bureaucracy in which we enmesh some of our clients (minutes dated September 28, 2005, 4). By the next appearance, appellant had enrolled in the Cornerstone Medical Arts outpatient program and was working off the books. The prosecutor stated that he had to obtain a 16 full time job, obtain his GED, and complete aftercare in order for the case to be dismissed (minutes dated October 26, 2005, p. 2). Appellant's case was again adjourned for several months (minutes dated November 22, 2005, December 20, 2005) . Unfortunately, by February 2, 2006, appellant relapsed and had entered a detoxification program. He also failed his GED exam and remained unemployed (minutes dated February 6, 2006, p. 2). Consequently, given that the case was pending since 1998, the prosecutor asked the court to impose a sentence of 3~ to 7 years in prison (minutes dated February 6, 2006, p. 2). The court responded [oln the other hand, the case has been pending since 1998. He hasn't been rear- rested. At least recently it's possible that D-Tap has failed him. In any event, the recommendation is ludicrous (minutes dated February 6, 2006, p. 2). Appellant then confirmed that he would complete his detoxification program and then enter a 45 day program (minutes dated February 6, 2006, pp. 2 - 3) . Appellant next appeared in May 2006, at which time the prosecutor informed the court that appellant had been arrested on a petit larceny charge and the case was currently pending. Moreover, after his relapse and detoxification in February, l7 appellant did not return to the Cornerstone program and was discharged. The prosecutor also stated that appellant had not kept an appointment in April for the Day top Village out- patient program. According to the prosecutor, they learned that appellant had been in court as a party to a civil lawsuit which he won. Citing his purported unemployment, that he had not gotten his GED, and was not in treatment, the People did not know what else to do but to ask the court to impose sentence (minutes dated May 3, 2006, p. 3). The court characterized this request as "a failure of imagination" (minutes dated May 3, 2006, p. 3). Defense counsel responded that appellant is in his ninth year with the DTAP program right now. ~·1r. Feliciano, he was offered 90 days jail originally on this case. He completed their in-patient program. He completed one of their aftercares. He's on to their aftercare that they say he hasn't done now. He's shaping right now for a construction job. Met with them two weeks ago at DTAP office tested nega- ti ve. He did have a lawsuit going on. He's actually one of the few people who started a lawsuit against the city and from the dated of the commencement until the date of the trial is shorter than this case which is incredible. We lawsuit, lawyers couldn't notified them that he had that gave them proof of it. His contacted me, that's why he be here whatever the last date in court was. The judge made him attend that trial actually wanted him there. So he went. I'm aSking you to end this case 18 now and use your power to dismiss the charge (minutes dated May 3, 2006, p. 4). The lawsuit arose out of appellant's having been mis-diagnosed with AIDS in 1999. He lived with the mistaken diagnosis and underwent treatment for years before the mistake was discovered (minutes dated June 27, 2006, pp. 9-10). Wi th respect to the petit larceny arrest, appellant denied the charges, noting that he had sufficient money to pay for the deodorant he was accused of taking (minutes dated May 3, 2006, pp. 4-5) With respect to appellant's missing his appointment with Day top Village, counsel explained that appellant was working a construction job that he would lose if he missed a day (minutes dated May 3, 2006, P4 5). The court responded by expressing its frustration over how long the case was pending. The court, however, again believed that incarceration was "ludicrous" (minutes dated May 3, 2006, pp. 6-7). When counsel asked the court if there were any other alternative, the court responded that it had no power to do so (minutes dated May 3, 2006, p. 7). The court adjourned the case until June when appellant's petit larceny case was scheduled. By that time, the court expected appel- lant to be going to a program, in touch with DTAP, and do what he was supposed to do (minutes dated May 3, 2006, p. 8). 19 On June 14, 2006, the court received a report that appellant was hospitalized in a 30 day detoxification program (minutes dated June 14, 2006). Shortly thereafter, the prosecutor reported that appellant had been rearrested twice since the last time and the court remanded appellant (minutes dated June 22, 2006). By July 12, 2006, it was anticipated that appellant would enter a new program (minutes dated June 27, 2006, July 12, 2006). He entered the Day top program on August 7, 2006, but left the program three days later against clinical advise (August 7, 2006, August 10, 2006). Appellant voluntarily returned to court and explained that he had left the program to get clothing (minutes dated August 14, 2006, pp. 2-3). When the court asked appellant if he wanted to return to the program, appellant said "no," explaining that he had "been dealing with Special Narcotics since '97, twenty-eight months in the program, they never dismissed this case." Appellant wanted to file an Article 78 petition (minutes dated August 14, 2006, pp. 3-4) Sentence Appellant appeared on September 5, 2006, at which time the court stated it would impose sentence (S. 2-3). The People asked the court to sentence appellant to 3S to 7 years in prison (S. 3). Characterizing this recommendation as 20 unreasonable, defense counsel asked the court to consider what appellant had gone through since 1997: He completed, at least one program fully, he then pretty much, toward the end of his prolonged treatment had a couple of problems, which I think pale in compari- son to the amount of time he had been going through dealing with the Detap offices and jumping through the different hoops he was required to, it was really a long time and he did have some break- downs, he really only relapsed one time, which is what you would expect more of that in this case, his problems were more of in his personal life, in staffing issues. As you know, he was misdiagnosed with a horrible disease and to live through that it has not been an easy time for him either s. 4). Counsel hoped the prosecutor would allow appellimt to re-plead to a reduced charge and receive a lower sentence. At a minimum, defense counsel asked the court to impose the minimum permissible sentence. Appellant told the court that he felt "this is double jeopardy" and that he wanted to appeal (s. 4). The court sentenced appellant, as a second felony offender, to 2 to 4 years in prison (P. 5-6; S. 4). 21 ARGUMENT POINT I APPELLANT IS ENTITLED TO SPECIFIC PERFOR- MANCE OF HIS PLEA BARGAIN WHERE HE COM- PLIED WITH THE PLEA AGREEMENT BY COMPLET- ING SUCCESSFULLY AN IN-PATIENT AND AFTER- CARE PROGRAM. U. S. CONST., AMENDS. V, VI, XIV; N.Y. CONST., ART. I, §§ 2, 6. After entering his plea, over an eight and one half year period, appellant successfully completed an in-patient and aftercare program. Moreover, although not discussed at the plea proceeding nor made a specific requirement of the original plea agreement itself, appellant obtained full time employment, demonstrated the ability to accumulate savings, and prepared for and took his GED exam. By this point, as the court itself seemed to recognize, appellant had become "enmeshed" in a bureaucracy that appeared utterly unwilling to let him go. Under these circumstances, the court's failure to enforce the original plea bargain by dismissing the case, deprived appellant of his entitlement to specific performance of his plea bargain. Consequently, the Court's failure to enforce the plea agreement violated defendant's state and federal constitutional rights to due process of law and, in effect, rendered the plea involuntary. In the alternative, given appellant's protracted efforts in treatment, under the circumstances, appellant's plea and sentence should be vacated 22 and the indictment dismissed in the interest of justice. u.s. Const., Amends V, VI, XIV; N.Y. Const., Art. 1, §§2, 6: see Santobell0 v. New York, 404 U.S. 257, 261-62 (1971); Innes v. Dalsheim, 864 F. 2d 974, 978 (2 nd Dept. 1988); People v. McConnell, 49 N.Y.2d 349 (1980). See also Torres v. Berbary, 340 F.3d 63, 72 (2~ Cir. 2003). The Court of Appeals has emphasized that "certainty in plea negotiations [is] vital to the continued validity of that process. tr People v. Danny G .. 61 N.Y.2d 169, 170 (1984); Matter of Benjamin S., 55 N.Y. 2d 116 (1982). Accordingly I "[j] ust as the defendant is bound to the terms of the plea agreement, so is the government, and it may not unilaterally rewri te the agreement to protect its interests." United States v. Alexander, 869 F.2d 91, 94 (2~ Cir. 1989); accord People v. Danny G .. 61 N.Y.2d at 174 (stating, "inasmuch as the State may hold the defendant to the precise terms of the plea agreement as stated on the record, as a matter of fairness, defendant should be entitled to no less"); People v. McConnell, 49 N.Y.2d at 349. Moreover, it is settled as a matter of due process that defendants must be given the benefit of any ambiguity in the terms and conditions of a plea agreement. As the Second Circuit explained: Because a defendant pleading guilty pur- suant to a plea agreement waives a number 23 of fundamental constitutional rights, the circumstances surrounding the plea agree- ment must comport with due process to ensure defendant's understanding of its consequences ... In construing the prom- ises made in return for the plea, a court must look to what the parties reasonably understood the terms to mean, and resolve any ambiguity in the agreement in favor of the defendant. Spence v. Superintendent, 219 F.3d 162, 167 (2 nd Cir. 2000) (internal citations omitted and emphasis added); accord Innes v. Dalsheim, 864 F. 2d at 979 (stressing, "the state must bear the burden for any lack of clarity in the agreement and ambiguities should be resolved in favor of the de fen- dant") (emphasis added); see also People v. Rodriguez, 289 A.D.2d 512 (2d Dept. 2001) (clarifying that "a mere relapse alone was [not] sufficient to constitute a breach of the plea agreement") . A finding that a defendant has not satisfied the terms and conditions of a negotiated guilty plea is permissible only if the defendant expressly and unambiguously was informed of those terms and conditions, and of the consequences of their violation, at the time that he entered the plea. See,~, Santobello v. New York, 404 U.S. at 261-62 ("The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known"); Torres v. Berbary, 340 F.3d at 72 (stating that due process governs sentence-enhancements for violating 24 "original sentence condition[s]" of a plea); People v. Outley, 80 N.Y.2d 702, 713 (1993) ("A no-arrest condition could certainly not be held to have been breached by arrests which are malicious or merely baseless," because there must be a "legitimate basis" to conclude that a defendant violated a plea's original terms); see also Morrissey v. Brewer, 408 u.s. 471, 488 (1972) ("The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the condi tions") . Accordingly, in People v. Spina, 186 A.D.2d 9 (1 st Dept. 1992), this Court reversed the defendant's conviction because the lower court had imposed a heightened sentence based upon the defendant's violation of conditions that the court had imposed only after the defendant entered the guilty plea. As this Court explained: Although a court may impose a sentence greater than the one originally promised if that sentence is contingent upon compliance with certain conditions and the defendant does not discharge those requirements, the court in the instant situation did not. at the time of the plea, prescribe any rules that defendant had to observe in order to receive proba- tion. Only later did the court decide to make the sentence of probation subject to defendant's adherence to certain condi- tions ... [T J his is impermissible. Id. at 9-10 (internal citations omitted and emphasis added). See People v. Rodney E., 77 N.Y.2d 672, 676 (1991) (holding 25 enhanced sentence, based upon violation of supervisory condition that was imposed only after the defendant's convic- tion - which the court was unauthorized to impose - must be vacated) .5 Similarly, as the Supreme Court has long made clear, ftwhen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. U Santobello v. New York, 404 U.S. at 262; accord People v. Selikoff, 35 N.Y.2d 227, 241 (1974). Indeed, ft[wlhere a guilty plea is induced by a prosecutor's promise that is not kept, the criminal defendant's waiver of his constitutional right to trial must be held to be involuntary, and therefore, ineffective. u United States v. Alexander, 869 F. 2d at 95 (emphasis added); see People v. Jackson, 272 A.D. 2d 342, 343 (2d Dept. 2000) (finding enhanced sentenced 5 See also People v. Avery, 85 N.Y.2d 50),507 (1995) (ftConditions imposed as part of a plea arrangement are valid if the parties agree to them and they do not violate any statute or contravene public policyU) (emphasis added); People v. Parker, 271 A.D.2d 63, 69 (4 th Dept. 2000) (ftThe conditions imposed do not satisfy the requirements of due process because they permit the court to depart from a negotiated sentence based upon its subjective interpretation of a defendant's conduct rather than verifiable factual informationU) (emphasis added); People v. Grant, 243 A. D. 2d 358, 360 (pt Dept. 1997) (ftAny violations of the plea conditions were merely technical and did not amount to a failure by the defendant to keep his part of the bargainU) (emphasis added) . 26 improper, because "the defendant did not truly receive the benefit of his plea agreement") . For all of these reasons, it is axiomatic that "each party to [aJ voluntarily entered-into plea agreement is entitled to the benefits emanating from the agreement which cannot be retroactively vitiated. To hold otherwise would make a mockery of the plea bargaining process." People v. Evans, 58 N.Y.2d 14,24 (1982) (emphasis added); accord Innes v. Dalsheim, 864 F.2d at 978 ("when the parties arrive at an agreement constitutionally and in conformity with state sentencing procedures, each party may insist on adherence to the bargain struck") (emphasis added); People v. Curdgel, 83 N.Y.2d 862, 864 (1994); People v. McConnell, 49 NY2d at 349 ("Of importance also is the detrimental affect on the criminal justice system that will result should it come to be believed that the State can renege on its plea bargains with impunity notwithstanding defendant's performance"). Here, when appellant agreed to plead guilty and waived his constitutional right to a trial, at no point was appellant informed that he would have to obtain a GED, obtain full-time employment, or accumulate savings -- all contingencies not wholly within his control -- in order for the case to be dismissed. He was told only that he had to cooperate with and successfully complete the program without getting into 27 trouble, violating the rules, or committing new crimes. The written plea agreement appellant signed explained that successful completion meant "regular attendance, compliance with the program rules and regulations, full participation in all acti vi ties designated by program staff and negative toxicology reports."" Here, appellant more than satisfied the requirements imposed when he pled guilty. After entry of his plea in March 1998, appellant entered a drug treatment program where, for eighteen months, he did "well" in treatment, tested negative for drugs, and completed the requirements of the program. Although he was discharged from the program because he had a 6 With respect to the subsequent plea agreement appellant signed on February 5, 2002 -- which called for appellant to complete vocational and educational training, obtain aGED, obtain full-time employment, live on a budget and accumulate savings, and find sui table housing the court made no mention of the new plea agreement. Since the court never inquired into appellant's understanding of the new agreement, the record does not establish that appellant voluntarily entered into the new agreement. People v. McDermott, 68 A. D. 3d 1453, 1454 (3d Dept. 2009) ("A court's constitutional responsibility to review the terms and conditions of the plea agreement, the defendant's rights and those rights that the defendant is giving up and the concomitant responsibility to ascertain that the defendant understands them and is knowingly, intelligently and voluntarily waiving them must appear 'on the face of the record'") (citations omitted). See People v. Callahan, 80 N.Y.2d 273, 283 (1992) (with respect to waiver of right to appeal, "a knowing and voluntary waiver cannot be inferred from a silent record"). In any event, since by the time of the 2002 plea agreement, appellant had already fully complied with the terms of the original bargain, the case should have been dismissed and the latter agreement is a nullity. 28 small knife that he had used to open boxes, he nonetheless was permitted to enter an aftercare program. He remained in treatment where he again did well, and also sought treatment at a methadone clinic. By June 2000, "the only other thing" the prosecutor sought was to have appellant completely get off methadone, which he did by 2001. Notwithstanding appellant's accomplishments and that he successfully completed two and a half years of drug treatment, it became clear that he would never reach the finish line because each time he got close, the line was moved farther away. By September 2000, the prosecutor added that appellant must obtain vocational training. Four months after that, the prosecutor added the requirement that appellant obtain aGED. By May 2001, the prosecutor added another requirement that -- appellant had to obtain employment. As a result, appellant, albei t with some bumps along the way, either remained in treatment or awaiting entry into a program for a total of eight and one half years during which time he completed an in- patient and aftercare program. During this lengthy period, appellant was not only able to completely get off methadone in 2001 but, by 2004, appel- lant had obtained employment and demonstrated the ability to accumulate savings. Moreover, notwithstanding the limited availability of such programs, by 2005, appellant enrolled in 29 a GED program and thereafter took the exam which he unfortu- nately did not pass. Even though it was not a condition of his plea, the prosecutor expected that appellant would remain in an aftercare program until he obtained his GED. Given that appellant was never told, when he entered his plea, that he was required to obtain a GED and full-time employment, and accumulate savings before the case would be dismissed, if these additional, unauthorized post-plea conditions are enforced, appellant's waiver of his fundamental rights in the plea would not have been voluntarily, knowingly, and intelligently made, with an understanding of their true and complete consequences. Thus, the guilty plea itself would be invalid. See Santobello v. New York, 404 U.S. at 261-62; Innes v. Dalsheim, 864 F.2d at 978 ("Innes has raised suffi- cient doubt as to whether ... he was fully and fairly apprised of [the plea's] consequences"). In short, just as this Court held in People v. Spina, 186 A.D.2d at 9-10, the plea court here lacked the power to impose supplementary conditions after the original terms of the plea had been accepted. Hence, the alleged failure to satisfy those post-plea terms cannot justify the refusal to dismiss the case as agreed and the original bargain must now be fulfilled. The prosecutor's failure to allow appellant the benefit of his bargain and the court's failure to enforce the 30 plea bargain, therefore, violated appellant's state and federal constitutional rights to due process. See Santobello v. New York, 404 U.S. at 262; Innes v. Dalsheim, 864 F.2d at 978; People v. McConnell, 49 N.Y.2d at 349. Even if the terms of the plea agreement could be characterized as ambiguous, a defendant's constitutional right to due process mandates that, ~[iln construing the promises made in return for the plea, a court must. resolve any ambiguity in the agreement in favor of the defendant." See, e.g." Spence v. Superintendent, 219 F.3d at 167 (emphasis added); Innes v. Dalsheim, 864 F.2d at 978; United States v. Alexander, 869 F.2d at 94; People v. Danny G., 61 N.Y.2d at 174; People v. McConnell, 49 N.Y.2d at 349. Because a reasonable interpretation of the language of the agreement did not require that appellant obtain a GED, full-time employment, and accumulate savings in order to obtain dismissal of the case, this Court must enforce that interpretation. ~A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored." People v. Selikoff, 35 N.Y.2d at 241. However, "in certain circumstances, specific performance of a plea bargain must be afforded as a matter of essential fairness to defendant." See People v. Danny G., 61 N.Y.2d at 175; People v. McConnell, 49 NY2d at 31 347. As the Court of Appeals put it: Permitting defendant to proceed to trial is a satisfactory remedy when, by plead- ing guilty, the defendant has given up nothing but his right to trial. But where the defendant not only waives his right to trial, but performs other ser- vices ... that involve considerable risk or sacrifice, merely undoing the plea is small compensation, if any. People v. McConnell, 49 N.Y.2d at 348 (emphasis added); Matter of Chaipis v. State Liq. Auth., 44 N.Y.2d 57, 65 (1978). In that situation, the courts must grant specific performance. Id. Consequently, because appellant ~not only waive[dJ his right to trial, but perform [ed] other services that involve[d] considerable sacrifice" based upon the plea bargain, in that he completed an in-patient and aftercare program, specific performance of the plea bargain is required here. See People v. Danny G., 61 N.Y.2d at 175; People v. McConnell, 49 N.Y.2d at 348; Matter of Chaipis v. State Liq. Auth.: 44 N.Y.2d at 65; People v. Selikoff, 35 N.Y. 2d at 241. In the alternative, appellant's plea and sentence should be vacated and the indictment dismissed in the interest of justice. As argued above, not only did appellant, for all intents and purposes, meet his obligations under the plea agreement he validly entered, he did so under very unique and trying circumstances. A year after entry of his plea, 32 appellant was mis-diagnosed with AIDs, for which he underwent treatment for years before the mistake was discovered. Notwithstanding this extremely difficult circumstance, appellant successfully fulfilled his obligations under the original plea agreement. People v. Carrion, 880 N.Y.S.2d 864 (pt Dept. 2009). Accordingly, for the reasons stated above, appellant's plea should be vacated and the indictment dismissed. LAURA BOYD Of Counsel December 2011 CONCLUSION FOR THE REASONS STATED ABOVE, APPEL- LANT'S FELONY PLEA AND SENTENCE SHOULD BE VACATED AND THE INDICTMENT DISMISSED. 33 Respectfully submitted, STEVEN BANKS Attorney for Defendant- Appellant ADDENDUM SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT --------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- WILSON FELICIANO, Defendant-Appellant --------------------------------------x STATEMENT PURSUANT TO RULE 5531 1. The Indictment number in the court below was 10589/97. 2. The full names of the original parties were the People of the State of New York against Wilson Feliciano. There has been no change of parties on this appeal. 3. This action was commenced in the Supreme Court, New York County. 4. This action was commenced by the filing of an indictment on January 12, 1998. 5. This appeal is from a j ud,gment convicting appellant, after a guilty plea, of the crime of criminal sale of a controlled substance in the fifth degree [P.L. §220.31]. 6. This is an appeal from a judgment of conviction rendered September 5, 2006 (Soloff, J., at plea and sentence). 7. Appellant has been granted permission to appeal as a poor person on the original record. The appendix method is not being used. 1A Printing Specifications Statement This brief was prepared on a computer, using 12 point Courier typeface. The word count for this brief is 7628, exclusive of the table of contents, table of authorities, proof of service, and printing specifications statement.