PEOPLE v. DILLON

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Kelly A. DILLON, Appellant.

Decided: April 23, 2009

Before:  PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and GARRY, JJ. Livingston L. Hatch, Public Defender, Elizabethtown, for appellant. Julie A. Garcia, District Attorney, Elizabethtown, for respondent.

Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered June 3, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

Defendant was arrested after a substantial amount of cocaine was discovered in his car.   He later waived indictment and agreed to be prosecuted by a superior court information.   Pursuant to the terms of a plea agreement, defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree and waived his right to appeal.   He was thereafter sentenced to a prison term of five years and two years of postrelease supervision.   Defendant appeals and we affirm.

 Defendant argues that his constitutional rights were violated by the Essex County Drug Court's refusal to accept him into the program. As Drug Court is a “procedure[ ] utilized in determining and imposing sentence” and has no impact upon the legality of the sentence itself, defendant's waiver of the right to appeal precludes our review of his argument that he should have been accepted into the program (People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];  see People v. Hooten, 34 A.D.3d 941, 823 N.Y.S.2d 304 [2006] ).   Additionally, the issue is unpreserved due to defendant's failure to raise it before County Court (see CPL 470.05[2];  People v. Iannelli, 69 N.Y.2d 684, 685, 512 N.Y.S.2d 16, 504 N.E.2d 383 [1986], cert. denied 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 673 [1987];  People v. Sander, 47 A.D.3d 1012, 1013, 850 N.Y.S.2d 238 [2008], lv. denied 10 N.Y.3d 844, 859 N.Y.S.2d 403, 889 N.E.2d 90 [2008] ).

 We lastly note that defendant's challenge to the severity of the sentence imposed is precluded by his appeal waiver (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Hyson, 56 A.D.3d 890, 892, 867 N.Y.S.2d 245 [2008], lv. denied 12 N.Y.3d 758, 876 N.Y.S.2d 710, 904 N.E.2d 847 [2009] ).

ORDERED that the judgment is affirmed.

PETERS, J.P.

ROSE, LAHTINEN, MALONE JR. and GARRY, JJ., concur.

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