                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: November 17, 2016                    106985
________________________________

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

JORDAN C. NEDLIK,
                    Appellant.
________________________________


Calendar Date:   October 14, 2016

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

                              __________


      Jay L. Wilbur, Public Defender, Binghamton (Nathan E.
Schwartzman of counsel), for appellant.

      Stephen K. Cornwell Jr., District Attorney, Binghamton
(Stephen D. Ferri of counsel), for respondent.

                              __________


Garry, J.

      Appeal from a judgment of the County Court of Broome County
(Pelella, J.), rendered October 29, 2013, convicting defendant
upon his plea of guilty of the crime of grand larceny in the
fourth degree.

      In satisfaction of various charges, defendant pleaded
guilty to grand larceny in the fourth degree as charged in a
superior court information. Pursuant to the plea agreement,
sentencing was adjourned and defendant was allowed to sign a
contract to participate in a drug court program. It was
understood that if defendant abided by the conditions of the
contract, which included him completing the drug court program
and not violating the law prior to the final disposition of the
                              -2-                106985

matter, he would be allowed to withdraw his plea and enter a plea
to a misdemeanor. After completing the drug court program, but
prior to being given an opportunity to withdraw his plea,
defendant relapsed on several occasions and was also cited for
driving without a license. Defendant thereafter filed a motion
requesting that he be allowed to withdraw his plea to the felony
charge pursuant to the plea agreement. County Court denied the
motion and sentenced defendant pursuant to the felony conviction
to time served and five years of probation. Defendant now
appeals.1

      We affirm. Defendant contends that by successfully
completing the drug court program, he fulfilled his obligation
pursuant to the contract and, therefore, he should have been
allowed to plead guilty to a misdemeanor. The record reflects,
however, that by signing the contract, defendant affirmed that he
"underst[ood] that even after [he] complete[s] drug court [he]
must appear at all court dates and avoid further violations of
the law until this matter is disposed of finally." Defendant
also affirmed his understanding that if he "violate[s] the law
prior to final disposition of this matter, the [c]ourt will
determine the appropriate sentence for the felony charge."
Although defendant successfully completed the drug court program,
he subsequently used illegal drugs prior to the final disposition
of the matter. Under these circumstances, we cannot conclude
that County Court erred in sentencing defendant pursuant to the
felony conviction, despite his successful completion of the drug
court program (see People v Hicks, 98 NY2d 185, 189 [2002];
People v Coffey, 77 AD3d 1202, 1203-1204 [2010], lv denied 18
NY3d 882 [2012]).

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




     1
         On August 5, 2014, defendant admitted to violating the
terms of his probation by using Oxycodone and dropping out of a
treatment program. County Court revoked defendant's probation
and resentenced him to 1a to 4 years in prison.
                        -3-                  106985

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
