PEOPLE v. GINES (2024)

Judgment, Supreme Court, New York County (Guy H. Mitchell, J.), rendered August 29, 2019, convicting defendant, upon his plea of guilty plea, of grand larceny in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

Defendant's waiver of the right to appeal was not valid (see People v. Bonilla, 211 A.D.3d 614, 614, 180 N.Y.S.3d 162 [1st Dept. 2022];  People v. Oquendo, 105 A.D.3d 447, 447–448, 963 N.Y.S.2d 71 [1st Dept. 2013]).  Nonetheless, because he never argued in trial court that the hearing regarding whether defendant had violated the conditions of his plea agreement violated due process, defendant's claim is unpreserved (see People v. Stephens, 108 A.D.3d 414, 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 address it in the interest of justice.

As an alternative holding, we find that the court acted within its broad discretion in denying defendant's application to be returned to a drug treatment program.  The court conducted “an inquiry of sufficient depth to satisfy itself that there was a legitimate basis for the program's decision” (People v. Hill, 77 A.D.3d 518, 908 N.Y.S.2d 878 [1st Dept. 2010]).  As required, defendant was afforded a reasonable opportunity at the hearing to assert his argument (see People v. Fiammegta, 14 N.Y.3d 90, 896 N.Y.S.2d 735, 923 N.E.2d 1123 [2010]).  Here, the court relied largely on the words of defendant and his counsel, who admitted that defendant committed a violation of the plea agreement by leaving the drug treatment program.