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

1209
KA 14-01826
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEVEN MYERS, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (James H.
Cecile, A.J.), rendered March 25, 2014. 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: Defendant appeals from a judgment convicting him
upon his plea of guilty of burglary in the third degree (Penal Law
§ 140.20). Preliminarily, we agree with defendant that he did not
validly waive his right to appeal because, although defendant signed
two written waivers of the right to appeal, there was no colloquy
between County Court and defendant concerning the waiver (see People v
Bradshaw, 18 NY3d 257, 264-265; People v Callahan, 80 NY2d 273, 283;
People v Terry, 138 AD3d 1484, 1484, lv denied 27 NY3d 1156). “[A]
written waiver does not, standing alone, provide sufficient assurance
that the defendant is knowingly, intelligently and voluntarily giving
up his right to appeal” (Terry, 138 AD3d at 1484 [internal quotation
marks omitted]). Defendant’s challenge to the voluntariness of his
plea is unpreserved for our review because he failed to move to
withdraw the plea or to vacate the judgment of conviction (see e.g.
People v Reinard, 134 AD3d 1407, 1408, lv denied 27 NY3d 1074, cert
denied ___ US ___ [Oct. 31, 2016]).

     Although defendant was not required to preserve for our review
his challenge to the validity of his waiver of indictment (see People
v Boston, 75 NY2d 585, 589 n; People v Lugg, 108 AD3d 1074, 1074), we
reject defendant’s contentions that his waiver of indictment is
invalid because there was no colloquy on that subject and no evidence
in the record that his waiver was executed in “open court” (CPL
195.20). A colloquy is not required in connection with a waiver of
indictment (see generally People v Pierce, 14 NY3d 564, 567-568) and,
                                 -2-                          1209
                                                         KA 14-01826

“even [when] the plea minutes are silent,” the “open court” execution
requirement of CPL 195.20 is satisfied where, as here, the court’s
order approving the indictment waiver “expressly found that defendant
had executed the waiver in open court” (People v Davis, 84 AD3d 1645,
1646, lv denied 17 NY3d 815; see People v Finster, 136 AD3d 1279,
1280, lv denied 27 NY3d 1132).

     We reject defendant’s contention that the court abused its
discretion in terminating his participation in a drug treatment
program. Pursuant to the terms of the plea agreement, defendant was
placed in a drug treatment program and, following his successful
completion of the program, the charge would be reduced to an
unspecified misdemeanor, from which he would be conditionally
discharged. If defendant did not complete the program, however,
defendant could receive any lawful sentence on the burglary
conviction, including the maximum term of imprisonment. When
defendant did not successfully complete the program, the court
sentenced him to the maximum term allowed. Trial courts have “broad
discretion when supervising a defendant subject to [a drug treatment
program], and deciding whether the conditions of a [drug treatment
program] plea agreement have been met” (People v Fiammegta, 14 NY3d
90, 96; see generally CPL 216.05 [9] [c]). Here, despite doing well
in the first year of the program, defendant ultimately relapsed
multiple times and missed several court dates. Defendant nevertheless
was twice given new treatment programs after relapsing. Under these
circumstances, we cannot conclude that the court abused its broad
discretion in terminating defendant’s participation in the drug
treatment program (see e.g. People v Shipp, 138 AD3d 1416, 1417, lv
denied 28 NY3d 936; People v Peck, 100 AD3d 1520, 1521, lv denied 20
NY3d 1102).

     Finally, defendant’s sentence is not unduly harsh or severe.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
