                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 11, 2014                104842
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

REBECCA A. CLOUTIER,
                    Appellant.
________________________________


Calendar Date:   August 21, 2014

Before:   McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.

                             __________


     Richard V. Manning, Parishville, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered January 18, 2012, convicting
defendant upon her plea of guilty of the crime of criminal
possession of a forged instrument in the second degree.

      Defendant pleaded guilty to a single-count indictment
charging her with criminal possession of a forged instrument in
the second degree. Pursuant to the underlying plea agreement,
defendant was to be sentenced to a one-year term of interim
probation with the understanding that she avoid the consumption
of alcohol and the use of controlled substances. If successful,
defendant's felony plea would be vacated and she would be allowed
to plead guilty to a misdemeanor and sentenced to probation.
Defendant also was advised that if she failed to abide by the
                              -2-                  104842

terms of her interim probation, she could be sentenced to seven
years in prison. After failing to comply with various treatment
programs both prior to her initial sentencing hearing and during
her interim probation, defendant was found to be in violation of
the terms of her interim probation, and County Court imposed a
sentence of 1b to 5 years in prison. This appeal ensued.

      Although the subject plea agreement contained a waiver of
defendant's right to appeal, the People concede – and we agree –
that defendant did not knowingly, intelligently and voluntarily
waive her right to appeal her conviction and sentence. Hence,
defendant's challenge to the severity of the sentence imposed is
properly before us (see People v Middleton, 72 AD3d 1336, 1337
[2010]). That said, the record reflects that defendant was
unable to abstain from consuming alcohol and using controlled
substances and that she repeatedly violated the terms of her
interim probation. Simply put, "self-induced alcohol and
substance abuse problems are not extraordinary circumstances
meriting reduction of [a] sentence" (People v Potter, 54 AD3d
444, 445 [2008]; accord People v Bice, 100 AD3d 1107, 1107-1108
[2012]). We therefore perceive no abuse of discretion or
extraordinary circumstances warranting a modification of the
sentence imposed in the interest of justice (see People v Riley,
97 AD3d 982, 983 [2012], lv denied 20 NY3d 935 [2012]; People v
Potter, 54 AD3d at 445).

     McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.


     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
