PEOPLE v. CRUZ (2023)

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered November 13, 2018, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 31/212 years, unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of reducing the conviction to criminal possession of a controlled substance in the seventh degree and reducing the sentence to time served, and otherwise affirmed.

Although defendant's waiver of his right to appeal was valid, defendant's claim that the court improperly imposed an enhanced sentence based on postplea conduct survives his waiver of the right to appeal (see People v. Turner, 158 A.D.3d 892, 893, 70 N.Y.S.3d 610 [3d Dept. 2018];  People v. Lodge, 54 A.D.3d 875, 876, 863 N.Y.S.2d 816 [2d Dept. 2008];  People v. Baxter, 302 A.D.2d 950, 951, 757 N.Y.S.2d 915 [4th Dept. 2003], lv denied 99 N.Y.2d 652, 760 N.Y.S.2d 116, 790 N.E.2d 290 [2003]).

“It is implicit to a promise of drug treatment as an alternative to imprisonment that the defendant will have access to a facility suited to provide him or her with a reasonable opportunity to deal with the addiction and to satisfactorily complete a program designed to that end” (People v. Rodriguez, 289 A.D.2d 512, 513, 735 N.Y.S.2d 168 [2d Dept. 2001]).  Thus, where a defendant has promised to complete a drug treatment program as an alternative to prison, the defendant is entitled to be placed in a suitable program or be provided an opportunity to withdraw the plea (see People v. Feliciano, 14 A.D.3d 308, 309–310, 787 N.Y.S.2d 281 [1st Dept. 2005];  People v. Jiminez, 307 A.D.2d 880, 881, 763 N.Y.S.2d 751 [1st Dept. 2003]).  Here, defendant was afforded neither before sentencing.  Under the circumstances, and because defendant has already completed his sentence, defendant is entitled to the benefit of the original promise of a class A misdemeanor and to a sentence of time served.