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

Brief

N.Y.November 13, 2013

®~36 E LEGAL D SOCIETY August 5, 2013 Hon. Jonathan Lippman Chief Judge Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Attn: Hon. Andrew W. Klein Clerk of the Court Re: People v. Wilson Feliciano APL-2013-00156 Rule 500.11 Submission Your Honor: Criminal Appeals Bureau 199 Water Street. New York. NY 10038 Tel: (212) 577-3688 www.legal-aid.org Blaine (Fin) V. Fogg President Steven Banks Attorney-in-Chief Seymour W. James, Jr. Attorney-in-Charge Criminal Practice This letter is submitted pursuant to section 500.11 of this Court's Rules of Practice. It is intended to supplement the arguments made on the merits in appellant Wilson Feliciano's Appellate Division brief. Appellant relies upon the facts stated in the brief. Pursuant to Rule 500.11(f), appellant also reserves arguments made in the Appellate Division brief not addressed in this letter. Appellant Feliciano was granted leave to appeal on June 4, 2013 (A. 1) and, by motion dated June 13, 2013, The Legal Aid Society moved to be assigned to represent him on his appeal to this Court. Appellant satisfied his obligations under the plea agreement by completing the requisite in-patient drug treatment program specified in the plea agreement. Even though he met his obligations under the plea agreement, the trial court denied his counsel's request that the case be concluded. Instead, appellant was told that he had to satisfy numerous other conditions that were not part of the plea agreement before he could earn dismissal of the indictment as promised under the plea agreement. Appellant remained in treatment for approximately Sy, years Hon. Jonathan Lippman People v. Wilson Feliciano 2 August 5, 2013 trying, without success, to satisfy the conditions imposed after he entered his plea. Based on appellant's successful completion of the in-patient drug treatment program specified in the plea agreement, appellant was entitled to dismissal of the indictment as promised in the plea agreement. In affirming his conviction, the Appellate Division, First Department, majority held that appellant had not earned dismissal of the indictment because he violated the plea agreement by relapsing, absconding from aftercare, and having further conflicts with the law which included a new drug conviction. The dissent, however, disagreed, finding that appellant had completed the drug treatment program as required by the plea agreement prior to his having absconded, relapsed or being rearrested. The People, however! continued to impose new conditions on the plea which concededly were not part of the original plea agreement. The dissent would have found that appellant was "entitled to specific performance of his original plea agreement and that the indictment should be dismissed." The Offense and Original Plea Agreement By Indictment No. 10589/97, appellant was charged with criminal sale and possession of a controlled substance in the fifth degree (A. 14; Indictment). 1 On March 25, 1998, appellant pled guilty to the criminal sale count in full satisfaction of the indictment (A. 16, 19; P. 2, 5). 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 dismissing the charge (A. 17; P. 3). If he violated these conditions, committed any other crimes, did not cooperate with the program or the court, or violated the rules of or was discharged from the program, then he would be sentenced to a prison term between 2 to 4 years to 3V, to 7 years (A. 17; P. 3) Upon entering his plea, appellant signed a written plea agreement (A. 16, 232; P. 2; Plea Agreement dated March 25, 1998). The agreement required, inter alia, that appellant participate in (for at least 12 months) and successfully Numbers preceded by "A" refer to the pages in Appellant's Appendix. 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. Hon. Jonathan Lippman People v. Wilson Feliciano 3 August 5, 2013 complete the H.E.L.P./Project Samaritan drug treatment program. "The determination a (sic) to whether the defendant has successfully completed the program is 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" (A. 232; Plea Agreement dated March 25, 1998, 12). 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 at least 3V, to 7 years in prison (A. 232; Plea Agreement dated March 25 1 1998, ~6). If appellant successfully completed the program and committed no new crimes, the People would agree to dismissal of the indictment in the interest of justice (A. 232; Plea Agreement dated March 25, 1998, 17). Appellant's Program Participation After entering treatment, appellant was reportedly "doing well" and was "compliant with the program rules and regulations" as of November 4, 1998 (A. 25-26; minutes dated November 4, 1998). He continued "doing well" in the program as reported on January 13, 1999 (A. 28-29; 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 "[t]here's no completion in the program" (A. 32; minutes dated June 2, 1999, p. 2). Appellant continued doing well in treatment and testing negative for drugs through August 25, 1999 (A. 36-38; minutes dated August 25, 1999). When appellant next appeared in court on September 22, 1999, defense counsel informed the court that appellant "completed his residential treatment which lasted about eighteen months." Defense counsel informed the court that program update characterized appellant as a stellar performing magnet, having no drug test positive, Hon. Jonathan Lippman People v. Wilson Feliciano 4 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 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 August 5, 2013 (A. 40; 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 (sic) it's been so long" (A. 40-41; 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 adjourned the case for another month (A. 41; minutes dated September 22, 1999, p. 3). Over the next about eight months, as requested by the People, 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 (A. 42-48, 51-53; 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 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," Hon. Jonathan Lippman People v. Wilson Feliciano 5 August 5, 2013 the court adjourned the case (A. 51-53; 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 appellant had not yet gotten off the methadone. The court adjourned the case (A. 54-56; minutes dated June 21, 2000). Over the next three months, appellant's case was adjourned 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 to remind him "that he must obtain that vocational training." The court adjourned the case for two more months (A. 57-61; 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. 2 The prosecutor now asked the 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 (A. 63-64; 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 - 2 In October 2001, appellant provided proof that he was completely off methadone (A. 95-97; minutes dated December 17, 2001). Although this Appellate Division enlarged the record to in include, inter alia, the minutes of March 20, 2001, appellate counsel has been unable to obtain these minutes and the Court Reporter's Office has filed an affidavit indicating the notes pertaining to this date cannot be located (A. 65; Affidavit with respect to March 20, 2001, minutes). Hon. Jonathan Lippman People v. Wilson Feliciano 6 August 5, 2013 respondent conceded on appeal n[n]one of those conditions were explicitly stated in the original DTAP agreement" (Respondent's brief, p. 6) -- 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 adjourned and counsel and appellant were directed to contact the DTAP personnel (A. 67-68; minutes dated May 15, 2001, pp. 2-3). While being processed to return to his prior program, appellant left the program and did not return (A. 71; minutes dated June 19, 2001, p. 2). Appellant was remanded and, over the next eight months, he remained incarcerated waiting placement in another program (A. 70-106; minutes dated June 19, 2001, June 26, 2001, July 19, 2001, August 8, 2001, August 15, 2001, September 7, 2001, September 21, 2001, October 16, 2001, November 26, 2001, December 17, 2001, January 10, 2002, January 24, 2002, February 5, 2002). When appellant appeared on December 17, 2001, defense counsel informed the court that he and appellant nwere here the last three times in court for proof from my client to show he was detoxed off of methadone." After defense counsel provided proof a month and a half earlier that appellant was off methadone, the People now accepted that this was the case, but they still did not have appellant in a program nostensib1y because the DTAP office had just learned of appellant's medical condition and required more information." Defense counsel questioned whether nthey want[ed] to help him. [noting they] want him to enter in DTAP and into a new DTAP agreement. When the court offered appellant a sentence of 2 to 4 years in prison, counsel responded that appellant ns til1 wants the program" (A. 95-97; minutes dated December 17, 2001). Hon. Jonathan Lippman People v. Wilson Feliciano 7 August 5, 2013 Appellant's Second Written Plea Agreement On February 5, 2002, the court stated that appellant would be picked up by Odyssey House the next day (A. 105-06; 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 ." (A. 233; Plea Agreement dated February 5, 2002, ~~1,2). If appellant "successfully completes the treatment program, including the after care or live-out phase of treatment, and has not been rearrested at any time prior to the final disposition of this matter, OSN will join the defendant's application to dismiss the indictment in this case in the interest of justice" (A. 233; Plea Agreement dated February 5, 2002, ~ 6). 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 up" (A. 109; minutes dated February 6, 2002, p. 3). Appellant's Continued Program Participation Appellant continued in treatment for four and one half more years, doing well for much of this period (A. 110-11, 114-19, 121-28, 131-35, 138-40, 144-49; minutes dated March 6, 2002, September 12, 2002, November 7, 2002, January 9, 2003, May 1, 2003, June 26, 2003, September 4, 2003, October 30, 2003, March 4, 2004, March 23, 2004, May 24, 2004, August 6, 2004, September 22, 2004, November 17, 2004), and making efforts to obtain a GED, maintain employment, and accumulate savings (A. 123-24, 133-40, 146-49, 158-60; minutes dated June 26, 2003, March 23, 2004, April 20, 2004, May 24, 2004, September 22, 2004, November 17, 2004, May 17, 2005). During this time span, appellant did miss some program sessions and relapsed on one occasion (A. 136- 43, 155-60; minutes dated April 20, 2004, May 24, 2004, July 19, 2004, March 22, 2005, May 17, 2005). As of January 2005, appellant was still in the program and Hon. Jonathan Lippman People v. Wilson Feliciano 8 August S, 2013 looking for employment when 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" (A. lS0-S4; minutes dated January 11, 200S, January 2S, 200S). Thereafter, in June 200S, the prosecutor asked that appellant be remanded and that the court impose sentence due to appellant's failure to attend his group sessions (A. 162; minutes dated June 13, 2005, p. 2). Thereafter, appellant was discharged from the program in August 200S due to excessive absences and had not reported to the prosecutor's office. Based on appellant's non- compliance, the People asked the court to sentence appellant to 3~ to 7 years' incarceration as per the plea agreement (A. 169- 70, 172-73; minutes dated September 7, 200S, September 28, 200S, pp. 2-3). After defense counsel explained that appellant's missed appointments were due to conflicts with his appellant's work and GED commitments, the court rejected the prosecutor's request that sentence be imposed (A. 173-7S; minutes dated September 28, 200S, p. 3-4, S). Over the next year, appellant relapsed and failed his GED exam (A. 177, 179-82, 184; minutes dated October 26, 200S, p. 2, November 22, 200S, December 20, 2005, February 6, 2006, p. 2). When the prosecutor again asked that appellant be sentenced, the court responded that "the case has been pending since 1998. He hasn't been rearrested. At least recently it's possible that D-Tap has failed him. In any event, the recommendation is ludicrous" (A. 184; minutes dated February 6, 2006, p. 2). By May 2006, appellant was arrested on a petit larceny charge, which was still pending, and appellant had not returned to treatment after his relapse. After several more months during which appellant again relapsed and was arrested twice more, and the prosecutor requested that the court sentence appellant and the court refused to do so, in August 2006, appellant decided that he did not want to return to a program because he had "been dealing with Special Narcotics since '97, twenty-eight months in the program, they never dismissed this case." Appellant, instead, wanted to file an Article 78 petition (A. 189-94, 196-200, 209-10, 212-14, 223-24; minutes dated May 3, 2006, p. 3-8, June 14, 2006, June 22, 2006, June 27, 2006, pp. 9-10; July 12, 2006; August 14, 2006, pp. 3-4). Hon. Jonathan Lippman People v. Wilson Feliciano 9 Sentence August 5, 2013 Appellant appeared on September 5, 2006, at which time the court stated it would impose sentence (A. 228-29, ; S. 2-3). The People asked the court to sentence appellant to 3V, to 7 years in prison (A. 229; S. 3). Characterizing this recommendation as unreasonable and recounting appellant's nine year odyssey in treatment counsel hoped the prosecutor would allow appellant 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 (A. 229-30; S. 3-4). The court sentenced appellant, as a second felony offender, to 2 to 4 years in prison (A. 19- 20, 230; P. 5-6; S. 4). APPEAL TO THE APPELLATE DIVISION AND DECISION Appellant argued that he was entitled to dismissal of the indictment because he had satisfied his obligations under the original plea agreement. Specifically, appellant argued that he completed the inpatient program mandated by his plea agreement and, even though not required by the plea agreement, he entered an aftercare program as well. By June 2000, "the only other thing" the People sought was to have appellant completely off methadone, another requirement that was not a condition of the plea agreement but one that appellant satisfied by 2001. Based on these accomplishments, appellant argued, he was entitled to dismissal of the indictment. He argued that he was wrongly denied this relief because the prosecutor added numerous condition that were not part of the original plea agreement but had to be satisfied before they would agree to dismissal of the indictment (Defendant-Appellant's Appellate Division brief, pp. 27-32). Respondent argued that appellant had violated the terms of the plea agreement because he was discharged from the in-patient treatment program for breaking the rules after he brought a pocket knife into the facility (Respondent's Appellate Division brief, p. 17). Arguing that the People had given appellant another chance by allowing him to enter an aftercare program, respondent asserted that appellant again violated the terms of the plea agreement by being arrested in March 2001 (Respondent's Appellate Division brief, p. 17). In support of the latter argument, respondent relied upon the felony complaint and NYSID sheet in the 2001 case to establish that appellant was arrested for selling drugs in March 2001 and was convicted of seventh Hon. Jonathan Lippman People v. Wilson Feliciano 10 August 5, 2013 degree possession of a controlled substance (Respondent's Appellate Division brief, p. 6).4 Finally, respondent argued that there were further violations of the plea agreements after March 2001 (Respondent's Appellate Division brief, pp. 7-15, 17- 19) . A divided First Department affirmed the conviction. See People v. Feliciano, 101 A.D.3d 617 (1st Dept. 2012). The First Department majority held, inter alia, that appellant had "violated the terms of his original plea agreement by relapsing into drug use, absconding from aftercare and having conflicts with the law that included a new drug conviction." rd. at 617. The majority also held that appellant's claim that "the second plea agreement he entered into was a nullity because it contained allegedly unconstitutional postplea conditions 1l5 was unpreserved or, in the alternative, without merit because appellant had already violated the first plea agreement by the time he entered into the second agreement and could have been eligible for a sentence of incarceration but for the opportunity to comply with the terms of the new agreement. The majority held that appellant "voluntarily agreed to the second agreement, and then violated its terms as well." rd. at 617-18. Two justices, Hon. James M. Catterson and Hon. Angela M. Mazzarelli, dissented. The dissenting justices would have found that appellant was entitled to specific performance of his original plea agreement and that the indictment should have been dismissed. 101 A.D.3d at 622 (Catterson, J., dissenting). The dissent recounted how the original plea agreement obligated appellant to participate in the H.E.L.P./Project Samaritan drug treatment program without any finite date of completion, and that, after completing 18 months of residential treatment, on September 22, 1999, defense counsel informed the court that the defendant had been discharged from the program for having a pocketknife, which he had used to open parcels sent by his family, a violation of the facility's rules. Defense counsel, however, "informed the court that the discharge coincided with his discharge from residential treatment for 'complet[ing] It appears that this subsequent arrest was never brought to the attention of trial court since, in 2006, the court noted that "the case has been pending since 1998. [Appellant] hasn't been rearrested." (A. 184; minutes dated February 6, 2006, p. 2). On appeal to the Appellate Division, appellant had not argued that the second plea agreement was a nullity because it contained unconstitutional post-plea conditions. Instead, appellant argued that the second agreement was a nullity because the trial court made no mention of the new plea agreement on the record. Hon. Jonathan Lippman People v. Wilson Feliciano everything. ,,, Id. at 618-19. 11 August 5, 2013 The dissent then noted that, while defense counsel was unsure if the plea agreement required appellant to complete an aftercare program, the prosecutor asserted that appellant was obligated to do so even though "the record reflects that the agreement does not specify aftercare." Counsel informed the court that appellant had been referred to an outpatient treatment program. A month later, "the prosecutor, for the first time, suggested to the court that the defendant seek treatment at a methadone clinic," and appellant "began treatment at the methadone clinic in addition to treatment in another program." By May 10, 2000, more than two years after appellant entered into the original plea agreement, "the prosecutor informed the court that the 'defendant [was] doing weIll and was 'compliant with the rules of the program.'" Noting that appellant had been in treatment for about 2 1/2 years, defense counsel informed the court that appellant was "'looking for some closure'" and that appellant "'kept getting bounced around,'" but the court adjourned the case again. When appellant appeared on September 28, 2000, still doing well at the methadone abstinence clinic, "the prosecutor, for the first time, informed the court and the defendant that the defendant was required to obtain vocational training." Id. at 619. The dissent recognized that, up to this point, the record "is devoid of any indication that the defendant had suffered any lapses into substance abuse. Yet, despite the defendant's completion of nearly three years of 'successful' residential treatment and aftercare, the court did not dismiss the defendant's case at his January 23, 2001 appearance." Instead, the prosecutor "asked the court to advise the defendant that he was required to obtain a GED. Several months later, the prosecutor advised the defendant that the 1998 DTAP also required him to secure employment." The dissent noted that the "People concede that these 'conditions . were not explicit in the original [DTAP] agreement.'" Id. at 619-20. In concluding that appellant was entitled to specific performance of his original plea agreement, the dissent recognized that, "had the People adhered to the terms of the DTAP agreement, the defendant's indictment on the 1997 felony offense would have been quashed by March 2001 when the defendant was arrested a second time for selling Xanax to an undercover police officer." Id. at 621, 622. Indeed, the dissent concluded that the trial court had no authority to impose additional conditions such as securing a GED, vocational Hon. Jonathan Lippman People v. Wilson Feliciano 12 August 5, 2013 training and employment more than two years after the original plea agreement was executed. The defendant was not informed at the time of his plea that he would have to comply with these conditions, nor indeed what constituted "successful completion" of DTAP in order to have his indictment dismissed. He was told only that he had to cooperate with and successfully complete the treatment program without getting into trouble, violating the rules, or committing new crimes. The written plea agreement he signed described successful completion as "regular attendance, compliance with the program rules and regulations, full participation in all activities designated by program staff and negative toxicology reports." There is no indication whatsoever that he did not fulfill these conditions. On the contrary, as the defendant asserts, the record reflects that he essentially satisfied the requirements of his March 1998 plea agreement before his March 2001 arrest. The defendant had entered a drug treatment program where, for 18 months, he did "well" and tested negative for drugs. Furthermore, although there is no evidence that the DTAP required any additional treatment, the defendant entered an aftercare program and then a methadone abstinence program where he "did well" and complied with the rules for approximately 18 more months. Although the People assert that the defendant broke one of the inpatient program rules by bringing in a pocketknife, they do not dispute that the incident coincided with his completion of the drug treatment program. Indeed at the defendant's September 22, 1999 appearance, rather than requesting that the defendant be remanded for violating the DTAP agreement or return to residential treatment, the prosecutor recommended that the defendant proceed to the aftercare phase of treatment. The court permitted the defendant to leave the program and enroll in an aftercare program where he remained in treatment and Hon. Jonathan Lippman People v. Wilson Feliciano 13 August 5, 2013 again "did well." Subsequently, at the prosecution's recommendation, the defendant sought treatment at a methadone clinic. By June 2000, "the only other thing" that the prosecutor sought was to have the defendant completely "off of" methadone, which the People do not dispute he accomplished "in early 2001." Id. at 621-22. APPELLANT SATISFIED THE TERMS OF HIS PLEA AGREEMENT AND WAS ENTITLED TO DISMISSAL OF THE INDICTMENT AS PROMISED As the dissent below recounted, over an almost three-year period, appellant successfully engaged in both in-patient and out-patient treatment, successfully completing the in-patient program that was the only requirement imposed by his 1998 plea agreement. Moreover, the record is devoid of any indication that, during this period, appellant relapsed into drug use, absconding from aftercare, or had any new legal difficulties. Having satisfied his obligations under the plea agreement, appellant was entitled to specific performance of his plea agreement, namely, dismissal of the indictment prior to his committing any violation of the plea agreement. LEGAL STANDARDS "plea bargaining is a practice vital to the efficient administration of the criminal justice system (see People v. Seaberg, 74 N.Y.2d 1, 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022), and 'an integral part of the plea bargaining process is the negotiated sentence' (see People v. Farrar, 52 N.Y.2d 302, 306, 437 N.Y.S.2d 961, 419 N.E.2d 864)." People v. Avery, 85 N.Y.2d 503, 506 (1995). Indeed, the plea bargaining process furthers "important policy considerations, conserving law enforcement, judicial and penal resources, and permitting the parties to avoid the uncertainties inherent in the lengthy process of charge, trial, sentence and appeals, thereby 'starting the offender on the road to possible rehabilitation' as soon as practicable (see People v. Selikoff, 35 N.Y.2d 227, 233, 360 N.Y.S.2d 623, 318 N.E.2d 784)." Id. Of particular importance, plea negotiations enable a court to impose an individualized sentence. Id. This Court has emphasized that "certainty in plea negotiations [is] vital to the continued validity of that process." People v. Danny G., 61 N.Y.2d 169, 173 (1984). See Matter of Benjamin S., 55 N.Y. 2d 116 (1982) (requiring that terms of plea be placed on the record and noting that "[a]ny Hon. Jonathan Lippman People v. Wilson Feliciano 14 August 5, 2013 other rule would serve only to undermine the goal of eliminating the secretiveness that has at times tended to surround the plea bargaining process"). While the imposition of conditions in plea bargains may be beneficial in effectuating the principals underlying the plea bargaining process, "c]onditions 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 policy (see, Seaberg, supra, at 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [provided 'there is no constitutional or statutory mandate and no public policy prohibiting it, an accused may waive any right which he or she enjoys']; Selikoff, supra, at 238, 360 N.Y.S.2d 623, 318 N.E.2d 784; cf., People v. Spina, 186 A.D.2d 9, 9-10, 586 N.Y.S.2d 800 [nonnegotiated condition improper where it was unilaterally imposed by court after the plea had been entered])." People v. Avery, supra, at 507. As the Supreme Court has long made clear, "when 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." Santobello v. New York, 404 U.S. 257, 262 (1971); accord People v. Selikoff, 35 N.Y.2d 227, 241 (1974). Indeed, it is axiomatic that "each party to [a] 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 People v. Curdgel, 83 N.Y.2d 862, 864 (1994) ("Specific performance of a plea agreement is a remedy rooted in concerns of 'essential fairness' (People v McConnell, 49 NY2d 340, 349)"). See People v. Rodney ~, 77 N.Y.2d 672, 676 (1991) (holding enhanced sentence, based upon violation of supervisory condition that was imposed only after the defendant's plea - which the court was unauthorized to impose - must be vacated); People v. Danny G., 61 N.Y.2d 169, 174 (1984) ("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 NY2d 340, 349 (1980) ("Of importance also is the detrimental effect 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"). See United States v. Alexander, 869 F.2d 91, 94 (2 nd Cir. 1989) ("[j]ust as the defendant is bound to the terms of the plea agreement, so is the government, and it may not unilaterally rewrite the agreement to protect its Hon. Jonathan Lippman People v. Wilson Feliciano 15 August 5, 2013 interests."); Innes v. Dalsheim, 864 F.2d 974, 978 (2d Cir. 1988) ("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). This Court has adhered to a "policy of requiring that all terms of the plea agreement be placed on the record." People v. Benjamin S., supra, 55 N.Y.2d at 120. Indeed, "once the terms of a plea bargaining agreement are placed on the record, judicial recognition of additional promises or terms of the agreement will not be forthcoming except in a rare case." Id. at 121. People v. Frederick, 45 N.Y.2d 520, 525 (1978) (courts "must be entitled to rely on the record to ascertain whether any promises, representations, implications and the like were made to the defendant."). 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, e.g., 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"); Spence v. Superintendent, 219 F.3d 162,167 (2nd Cir. 2000) (as a matter of due process, "[i]n construing the promises 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.") (internal citations omitted and emphasis added); 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 defendant") (emphasis added). See Torres v. Berbary, 340 F.3d 63, 72 (2d Cir. 2003) (stating that due process governs sentence-enhancements for violating "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). Here, in exchange for his plea, the court told appellant that, in order to earn dismissal of the indictment, he had to Hon. Jonathan Lippman People v. Wilson Feliciano 16 August 5, 2013 cooperate with and successfully completed the drug program specified in the plea agreement without getting into trouble, violating the rules, or committing new crimes. Appellant satisfied this obligation by September 1999 at which time defense counsel asked the court to end the case. Having satisfied his obligations under the plea agreement, appellant earned dismissal of the indictment as promised under the plea agreement. APPELLANT SATISFIED HIS OBLIGATIONS UNDER THE PLEA AGREEMENT As a threshold matter, it is undisputed that appellant completed the in-patient drug treatment program required by his plea agreement. In fact, the People conceded as much on the record. On September 22, 1999, defense counsel informed the court that appellant had completed the required in-patient program. Moreover, while counsel did acknowledge that, as appellant was packing to leave the program, he had a pocket knife in his locker that he used to open boxes, counsel informed the court that "it coincided with his discharge so he completed that program." Consequently, defense counsel requested "the case to be over at this point but (sic) it's been so long." In response to defense counsel's statement, the People, in the trial court, did not dispute that appellant had completed the program. Instead, the prosecutor confirmed that her notes comported with what defense counsel had said except with respect to whether the plea agreement required that appellant participate in an aftercare program. Under these circumstances, the People failed to preserve any claim that appellant did not complete the required program. People v. Chavis, 91 N.Y.2d 500, 506 (1998); People v. Nieves, 67 N.Y.2d 125, 135-36 (1986); People v. Dodt, 61 N.Y.2d 408, 416 (1984). While, on appeal, respondent argued that appellant had not completed the requisite in-patient treatment program because he was discharged for possessing the pocket knife, they did not present this argument to the trial court but, instead, confirmed defense counsel's statement that appellant had completed the program. Since the People did not argue in the trial court that appellant had failed to successfully completed the requisite in- patient program and that, as a result, appellant had violated terms of the plea agreement, this argument cannot be entertained Hon. Jonathan Lippman People v. Wilson Feliciano 17 August 5, 2013 by this Court as an alternate basis for affirming appellant's conviction. People v. LaFontaine, 92 N.Y.2d 470, 473 (1998); People v. Romano, 91N.Y.2d 750, 753-54 (1998); People v. Goodfriend, 64 N.Y.2d 695, 697-98 (1984). Since the trial court did not specifically rule that appellant had not completed the requisite in-patient program, any purported question as to whether appellant had completed the program is not properly before the court. People v. LaFontaine, supra, 92 N.Y.2d at 473- 74 ("This Court has construed CPL 470.15(1) as a legislative restriction on the Appellate Division's power to review issues either decided in an appellant's favor, or not ruled upon, by the trial court [and that] constraint concomitantly narrows this Court's powers when considered within our own statutorily prescribed regimen.") (internal citations omitted). Accord People v. Ingram, 18 N.Y.3d 948 (2012). Hence, this Court can determine whether appellant met the terms of his plea agreement, and thus was entitled to specific performance, and whether the trial court improperly imposed additional conditions after entry of the guilty plea. Cf. People v. Jenkins, 11 N.Y.3d 282, 288 (2008). Given that appellant had completed the requisite in-patient drug treatment program long before he relapsed, absconding from aftercare, or had new legal difficulties, the majority's determination below that appellant violated the terms of his plea agreement on this basis is without any support in the record. When appellant pleaded guilty on March 25, 1998, the court told him that he would 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 dismissing the indictment. 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 2 to 4 years to 3'h to 7 years. Upon entering his plea, appellant signed a written plea agreement which clarified that appellant was to 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.// Hon. Jonathan Lippman People v. Wilson Feliciano 18 August 5, 2013 Appellant was not informed, either by the court or the written plea agreement, that he would have to complete an aftercare program, a methadone program, get off methadone, obtain a GED and employment, or accumulate savings before the indictment would be dismissed. By September 22, 1999, appellant had satisfied his obligation under the plea agreement, "doing well" in the program, testing negative for drugs, and, as counsel stated, completing the program. Based on this performance, counsel asked the court to "end" the case. Counsel did acknowledge that, as appellant was packing to leave the program, he had a pocket knife in his locker that he used to open boxes, "[bjut, it coincided with his discharge so he completed that program." Moreover, although 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 (sic) it's been so long. II The People did not dispute that appellant had completed the program. Instead, the prosecutor confirmed that her notes comported with what defense counsel had said except with respect to whether the plea agreement required that appellant participate in an aftercare program, arguing that participation in an aftercare program was part of plea agreement. The trial court, instead of ending the case as defense counsel had requested, it adjourned the case for further updates. Since neither court statements during the plea proceeding or the written plea agreement informed appellant that he would have to complete an additional aftercare program, such requirement was not part of appellant's plea agreement. People v. Benjamin S., supra, 55 N.Y.2d at 120-21; People v. Frederick, supra, 45 N.Y.2d at 525. Instead, under the explicit terms of appellant's plea agreement, appellant was required to successfully complete the H.E.L.P./Project Samaritan drug treatment program, and, since appellant completed the requisite in-patient program, the court should have dismissed the charge at this point. Santobello v. New York, supra; People v. Evans, supra; People v. Selikoff, supra. Even if this Court were to find that the plea agreement were ambiguous as to whether participation in an aftercare program was required, any Hon. Jonathan Lippman People v. Wilson Feliciano 19 August 5, 2013 ambiguity in the agreement must be construed in favor of appellant. Santobello v. New York, supra, 404 u.s. at 261-62; Spence v. Superintendent, supra, 219 F.3d at 167; Innes v. Dalsheim, 864 F.2d at 979. Even if appellant had been required to participate in aftercare, he did so successfully for 18 months and, again, on May 10, 2000, defense counsel informed the court that appellant had been in the program for about two and a half years and he was "looking for some closure, eventually." Again, the court did not grant this defense request to end the case but adjourned the case for appellant to satisfy additional conditions that were not part of appellant's plea agreement. These conditions included appellant's getting off methadone after the People had added the post-plea condition that appellant attend a methadone clinic. The additional conditions also required that appellant obtain vocational training and obtain his GED. As respondent conceded on appeal these "conditions were [not] explicitly stated in the original DTAP agreement" (Respondent's brief, p. 6). Moreover, the inclusion of these conditions pre-dated the second written plea agreement appellant signed in February 2002. There is no support in the record for the First Department majority's ruling that appellant had "violated the terms of his original plea agreement by relapsing into drug use, absconding from aftercare and having conflicts with the law that included a new drug conviction." People v. Feliciano, supra, 101 A.D.3d 617. As the dissent noted, appellant had satisfied his obligations under the original agreement long before the events relied upon by the majority occurred. If the trial court had dismissed the indictment on either of the two occasions defense counsel had requested that the case be ended -- as the trial court was obligated to do given that appellant more than satisfied his obligations under the plea agreement -- then the violations the majority relied upon would never have occurred. Accordingly, the First Department's finding that appellant had violated the terms of his original agreement prior to satisfying his obligation under the original agreement lacks support in the record. In sum, since appellant had satisfied his obligations under the original plea agreement, the trial court should have granted the defense requests, in September 1999 and May 2000, to end the case. Had the trial court done so, the case would have been finished long before appellant engaged in any conduct that the majority below relied upon to find that appellant had violated Hon. Jonathan Lippman People v. Wilson Feliciano 20 the terms of his original plea agreement. Preservation August 5, 2013 Under C.P.L. §470.05(2), "a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered." Here, defense counsel first preserved the claim that appellant had earned dismissal of the indictment when, on September 22, 1999, he informed the court that appellant had completed the requisite in-patient program specified in the plea agreement and asked that "the case to be over at this point but (sic) it's been so long." This express request for the court to conclude appellant's case was sufficient to preserve appellant's present claim that he met his obligations under the plea agreement and that indictment should be dismissed. C.P.L. §470.05(2). That defense counsel was unsure if aftercare was part of the plea agreement does not render the claim unpreserved. The prosecutor took the position that there was an "after phase" requirement and that appellant had "been sent to El Regresso to complete his treatment." Confronted with these differing positions, the court agreed with the People's position that aftercare was required when it adjourned the case and had appellant continue in aftercare instead of concluding the case as the defense requested. To the extent that it was unclear whether aftercare was required, the court should have ordered the minutes of the plea proceeding or reviewed the plea agreement to resolve any ambiguity. Instead, the court determined that, under the terms of the plea, appellant had to participate in an aftercare program. Pursuant to the language of C.P.L. §470.05(2), the court's determination that appellant had to attend aftercare presents "a question of law with respect to" court's refusal to end the case even though defense counsel did not register a protest thereto. In the same vein, defense counsel again preserved the claim that appellant had satisfied his obligations under the plea agreement when, on May 10, 2000, counsel informed the court that appellant had been in the program for about two and a half years Hon. Jonathan Lippman People v. Wilson Feliciano 21 August 5, 2013 and he was "looking for some closure, eventually." The court's denial of this request (either expressed or implied) to end the case and its adjournment of the case for appellant to continue in treatment again presents a question of law for this Court to review. C.P.L. §470.05(2). Accordingly, this Court can review, as a matter of law, whether the terms of appellant's plea guaranteed him dismissal of indictment upon his successful completion of the inpatient program. For these reasons, appellant Wilson Feliciano satisfied the terms of the original plea agreement and, as a result, he earned dismissal of the indictment as he was promised. Accordingly, this Court should reverse the Appellate Division's order affirming Mr. Feliciano's conviction and order that the indictment be dismissed. cc: Hon. Cyrus R. Vance, Jr. District Attorney New York County One Hogan Place New York, N.Y. 10013 Attn: ADA Martin J. Fonce1lo Respectfully submitted, (j~«- By) LAURA BOYD Associate Appellate Counsel (212) 577-3571