Opinion
108349
11-15-2018
The PEOPLE of the State of New York, Respondent, v. Jacob S. SMITH, Appellant.
Tracy Donovan–Laughlin, Oneonta, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Anthony J. Frank of counsel), for respondent.
Tracy Donovan–Laughlin, Oneonta, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Anthony J. Frank of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Garry, P.J.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered December 7, 2015, convicting defendant upon his plea of guilty of the crime of attempted burglary in the third degree.
In satisfaction of a two-count indictment, defendant pleaded guilty to attempted burglary in the third degree in exchange for the People's recommendation of a prison sentence of 1½ to 3 years. Prior to sentencing, defendant's counsel submitted a letter requesting that County Court consider sentencing defendant to parole supervision that would include placement in the Willard drug treatment program. At sentencing, County Court denied defendant's request and, consistent with the plea agreement, sentenced defendant, as a second felony offender, to a prison term of 1½ to 3 years. Defendant appeals.We affirm. Defendant contends that County Court erred when it refused his request, made prior to and renewed at sentencing, for a sentence of parole supervision that included drug treatment pursuant to Penal Law § 70.70(3)(d) (see CPL 410.91 ). Defendant, however, received the sentence promised by the plea agreement, which did not include any promise by County Court to consider or recommend drug treatment as an alternative, discretionary sentence (see People v. Johnson, 137 A.D.3d 1419, 1420, 28 N.Y.S.3d 134 [2016] ; People v. Brady, 122 A.D.3d 1009, 1010–1011, 995 N.Y.S.2d 418 [2014], lv denied 25 N.Y.3d 1160, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ; People v. Patterson, 119 A.D.3d 1157, 1158, 990 N.Y.S.2d 319 [2014], lvs denied 24 N.Y.3d 1042, 1046, 998 N.Y.S.2d 316,23 N.E.3d 159 [2014]; People v. Rodriguez, 275 A.D.2d 861, 861, 713 N.Y.S.2d 570 [2000], lv denied 96 N.Y.2d 738, 722 N.Y.S.2d 805, 745 N.E.2d 1028 [2001] ). Moreover, County Court did not err in concluding that a drug treatment program would not be appropriate or warranted given defendant's "extensive [criminal] history over the last [10] years" (see People v. Johnson, 137 A.D.3d at 1420, 28 N.Y.S.3d 134 ; People v. Patterson, 119 A.D.3d at 1158, 990 N.Y.S.2d 319 ; People v. Batista, 282 A.D.2d 825, 826, 725 N.Y.S.2d 104 [2001], lvs denied96 N.Y.2d 825, 829, 729 N.Y.S.2d 445, 449, 754 N.E.2d 205, 209 [2001]; cf. People v. Hernandez, 62 A.D.3d 1095, 1097, 878 N.Y.S.2d 819 [2009], lv denied 13 N.Y.3d 745, 886 N.Y.S.2d 99, 914 N.E.2d 1017 [2009] ; People v. Graham, 35 A.D.3d 1039, 1040, 826 N.Y.S.2d 805 [2006], lv denied 8 N.Y.3d 922, 834 N.Y.S.2d 513, 866 N.E.2d 459 [2007] ).
Further, while defendant argues that defense counsel was ineffective for failing to obtain a more favorable sentence of parole supervision that included participation in the Willard drug treatment program pursuant to Penal Law § 70.70(3)(d) (see CPL 410.91[5] ), this claim was not preserved by an appropriate postallocution motion (see People v. Warren, 160 A.D.3d 1286, 1287, 75 N.Y.S.3d 362 [2018] ; People v. Thomas, 153 A.D.3d 1445, 1446, 61 N.Y.S.3d 701 [2017], lv denied 30 N.Y.3d 1064, 71 N.Y.S.3d 14, 94 N.E.3d 496 [2017] ). To the extent that this claim implicates matters outside the record regarding counsel's efforts, it is more appropriately considered in a motion pursuant to CPL article 440 (see e.g. People v. Hayden, 155 A.D.3d 1309, 1311, 65 N.Y.S.3d 320 [2017] ).
Egan Jr., Clark, Mulvey and Rumsey, JJ., concur.
ORDERED that the judgment is affirmed.