PEOPLE v. ORENSTEIN (2024)

Judgment, Supreme Court, New York County (Guy Mitchell, J.), rendered October 17, 2019, as amended January 15, 2020, convicting defendant, upon his pleas of guilty, of two counts of grand larceny in the third degree, and sentencing him, as a second felony offender, to consecutive terms of 2 to 4 years, and judgment, same court (Kate Paek, J.), rendered September 22, 2021, convicting defendant, upon his plea of guilty, of attempted burglary in the third degree and identity theft in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 11/212 to 3 years, to run consecutively with the sentences imposed on his convictions of grand larceny in the third degree, unanimously affirmed.

Defendant failed to preserve his claims that the court imposed a prison sentence without sufficient inquiry into his termination from the substance abuse treatment program, in which he enrolled as a term of his plea agreement, and that the court failed to evaluate the program's ability to meet his treatment needs (see People v. Stephens, 108 A.D.3d 414, 967 N.Y.S.2d 731 [1st Dept. 2013], lv denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013]), and we decline to review them in the interest of justice.  As an alternative holding, we find that the sentencing court providently exercised its discretion in imposing sentence (see People v. Fiammegta, 14 N.Y.3d 90, 96, 896 N.Y.S.2d 735, 923 N.E.2d 1123 [2010]).  Defendant violated the no-arrest condition of his plea agreement, and he did not dispute the validity of his new arrest (see People v. Outley, 80 N.Y.2d 702, 712–713, 594 N.Y.S.2d 683, 610 N.E.2d 356 [1993]).  Accordingly, defendant was not entitled to further inquiry into his discharge from the program or the suitability of the program (see People v. Matosevic, 136 A.D.3d 437, 23 N.Y.S.3d 886 [1st Dept. 2016], lv denied 27 N.Y.3d 1071, 38 N.Y.S.3d 842, 60 N.E.3d 1208 [2016]).

Defendant's purported waiver of the right to appeal during his first plea proceeding, in connection with his convictions of grand larceny in the third degree, was invalid because the court did not inform defendant that he would normally have the right to appeal his case to this Court (see People v. Jenkins, 138 A.D.3d 102, 105, 24 N.Y.S.3d 639 [1st Dept. 2016], lv denied 27 N.Y.3d 1070, 38 N.Y.S.3d 841, 60 N.E.3d 1207 [2016]), nor did the court ensure that defendant understood the written waiver or reviewed it with counsel (see People v. Thorne, 207 A.D.3d 73, 77, 169 N.Y.S.3d 63 [1st Dept. 2022]).  Defendant's valid waiver of appeal during his second guilty plea allocution, involving attempted burglary in the third degree and identity theft in the second degree (see generally People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]), forecloses review of his excessive sentence claim in that case (see People v. Nunez, 220 A.D.3d 597, 597, 197 N.Y.S.3d 61 [1st Dept. 2023], lv denied 41 N.Y.3d 1004, 213 N.Y.S.3d 222, 236 N.E.3d 1240 [2024]).

In any event, we perceive no basis for reducing any of the sentences.