PEOPLE v. HENRY (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ferdinand, J.), rendered May 12, 2004, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

While on probation for two drug-related felonies, the defendant was arrested and indicted for selling heroin to an undercover officer within 1,000 feet of a school.   He subsequently entered a plea of guilty to one count of criminal sale of a controlled substance in the third degree in full satisfaction of the indictment. The court promised that if he successfully completed a DTAP program (Drug Treatment Alternative-to-Prison Program), the plea would be vacated and the indictment would be dismissed.   The court warned, however, that if he failed to complete the program, he would face a sentence of 4 1/212 to 9 years imprisonment as a second felony offender.   The defendant was fully allocuted and, upon his admission, was adjudicated a second felony offender.   He was subsequently discharged from one residential drug treatment program for non-compliance, and left a second residential program without permission and against clinical advice.   He was thereafter arrested for another drug sale.   The court sentenced him to a term of 4 1/212 to 9 years imprisonment.

The defendant's purported waiver of his right to appeal from the sentence imposed was ineffective (see People v. Brown, 13 A.D.3d 548, 786 N.Y.S.2d 583;  People v. Williams, 258 A.D.2d 544, 686 N.Y.S.2d 56;  People v. Rose, 236 A.D.2d 637, 654 N.Y.S.2d 693;  People v. Rolon, 220 A.D.2d 543, 632 N.Y.S.2d 208).   Contrary to the defendant's contention, however, the sentence was neither unconstitutional nor excessive (see People v. Moore, 261 A.D.2d 421, 690 N.Y.S.2d 75;  People v. James, 251 A.D.2d 208, 674 N.Y.S.2d 653;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).