        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

973
KA 12-00841
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KERRY LANDRY, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Jeffrey R.
Merrill, A.J.), rendered May 1, 2012. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him, upon his guilty plea, of burglary in the third degree
(Penal Law § 140.20) and, in appeal No. 2, he appeals from a judgment
convicting him, upon his guilty plea, of criminal possession of a
forged instrument in the second degree (§ 170.25). Defendant contends
in each appeal that his respective pleas were involuntarily entered
because County Court failed to advise him of all of the constitutional
rights he would be forfeiting upon pleading guilty (see Boykin v
Alabama, 395 US 238, 243; People v Tyrell, 22 NY3d 359, 361). By
failing to move to withdraw the respective pleas or to vacate the
respective judgments of conviction, however, defendant failed to
preserve his contention for our review (see CPL 470.05 [2]; People v
Watkins, 77 AD3d 1403, 1403, lv denied 15 NY3d 956), and the “narrow
exception” to the preservation rule does not apply because defendant
did not say anything during the respective plea colloquies that cast
significant doubt on his guilt or otherwise called into question the
voluntariness of his pleas (People v Lopez, 71 NY2d 662, 666).
Although the Court of Appeals in Tyrell vacated a guilty plea based on
an unpreserved Boykins claim, the defendant in that case was sentenced
immediately following his plea and thus did not have an opportunity to
move to withdraw his plea (see Tyrell, 22 NY3d at 364). Here, in
contrast, defendant was sentenced more than two months after he
entered his guilty pleas, thus affording him ample time to bring a
motion.
                                 -2-                           973
                                                         KA 12-00841

     We reject defendant’s further contention in both appeals that the
court abused its discretion in terminating him from a drug treatment
program after he admittedly violated the conditions of the program.
“Courts are afforded great deference in making judicial diversion
determinations, and we perceive no abuse of discretion here” (People v
Williams, 105 AD3d 1428, 1428, lv denied 21 NY3d 1021; see CPL 216.05
[9] [c]; People v Dawley, 96 AD3d 1108, 1109, lv denied 19 NY3d 1025).
Finally, considering defendant’s extensive criminal record and the
multiple opportunities he has had to obtain substance abuse treatment,
we decline to modify his sentence as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [b]).




Entered:   October 9, 2015                     Frances E. Cafarell
                                               Clerk of the Court
