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1
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OPINION
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EXTRACTED KEY WORDS
PLEA COURT PROBATION PLEA AGREEMENT DRUG SUCCESSFUL COMPLETION IMPOSE DRUG REHABILITATION PROGRAM NY2D AUTHORITY SUPRA DRUG TREATMENT PROGRAM PROMISES CONVICTION SUPERVISION STATUTORY REPORT INTERIM PROBATION RODNEY SUBSTANCE AD2D GUILTY OFFENDER SUPREME IMPOSITION WITHDRAW AFFIRM PLEA BARGAINS NEGOTIATION |
THE PEOPLE &C., RESPONDENT, v. ROOSEVELT AVERY A/K/A RUSSELL ANTHONY,
APPELLANT.
85 N.Y.2d 503, 650 N.E.2d 384, 626 N.Y.S.2d 726 (1995).
April 4, 1995
1 No. 116 (1995 NY Int. 081)
Decided April 4, 1995
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Carol Novack, for Appellant.
Polly Greenberg, for Respondent.
CIPARICK, J.:
The general issue on this appeal concerns the legality of a plea
agreement which offered defendant a favorable sentence conditioned on
his first entering and successfully completing a private drug
rehabilitation program. More specifically, we must determine whether
the deferral of sentencing to allow the court to monitor defendant's
rehabilitative progress is tantamount to illegal "interim probation"
pursuant to People v Rodney E. (77 NY2d 672). We conclude that the
plea agreement at issue is legal.
On March 12, 1992 defendant pled guilty to the top counts of two
separate indictments, criminal sale of a controlled substance in the
third degree and criminal possession of a controlled substance in the
third degree, both felonies. Under the terms of the plea agreement,
although defendant was a second felony offender facing mandatory
incarceration upon sentencing, Supreme Court promised to delay
imposition of sentence to allow defendant to enter the Fortune Society
Drug Rehabilitation Program. Furthermore, if defendant successfully
completed the program, the felony pleas would be vacated and he would
be permitted to plead guilty to a class A misdemeanor; if he failed,
he would receive sentences of imprisonment of from 4 1/2 to 9 years on
each indictment to run concurrently. Defendant did not successfully
complete the Fortune Society program and on September 17, 1992 he was
sentenced to two concurrent terms of 4 1/2 to 9 years imprisonment.
On appeal, defendant challenged the trial court's authority to
unlawfully condition and defer his sentencing. The Appellate Division
declined to review the issue of Supreme Court's failure to afford
defendant the opportunity to withdraw his guilty plea, erroneously
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