                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 4, 2014                   105289
________________________________

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

ELLEN COONEY,
                    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.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered August 9, 2012, convicting
defendant upon her plea of guilty of the crime of attempted
burglary in the second degree.

      In full satisfaction of several pending charges, defendant
pleaded guilty to a superior court information charging her with
attempted burglary in the second degree, with the understanding
that, if she completed a judicial diversion program (hereinafter
JDP) (see CPL 216.05), she would be sentenced to five years of
probation. County Court placed defendant on interim probation
and informed her that if she was unsuccessful in the JDP, she
would be sentenced to the maximum sentence of seven years in
prison plus five years of postrelease supervision. Approximately
                              -2-                105289

one year later, defendant was arrested. She waived her right to
a hearing and admitted to committing criminal trespass in the
second degree, and was discharged from the JDP. She was then
sentenced, as a second violent felony offender, to 6½ years in
prison, to be followed by five years of postrelease supervision.
Defendant now appeals, and the People concede that her purported
waiver of the right to appeal was invalid. Nevertheless, her
arguments lack merit, as the People argue.

      Initially, we note that defendant failed to preserve, by
appropriate postallocution motion, her argument that she was
denied due process because she was not represented by counsel
during JDP status conferences (see CPL 216.05 [8]) and at the
meeting of the treatment court team in which it was concluded
that she should be terminated from the JDP. Moreover, the record
reveals that in her JDP contract – which was signed by defendant
and her counsel and discussed in open court – defendant waived
the right to have her attorney present during any JDP sanction
proceeding except termination, and counsel was present and
actively participated in the termination hearing. Under these
circumstances, were this issue properly before us, we would find
that defendant received the process she was due (see CPL 216.05
[9] [b]; People v Dawley, 96 AD3d 1108, 1109 [2012], lv denied 19
NY3d 1025 [2012]; see also People v Fiammegta, 14 NY3d 90, 96-98
[2010]).

      Furthermore, County Court did not abuse its discretion in
terminating her from the JDP, and her sentence was not harsh or
excessive. Defendant was presumptively ineligible for the JDP,
given that she was currently charged with, and had previously
been convicted of, a violent felony offense (see CPL 216.00 [1]).
Although the People consented to her participation in the JDP,
defendant was arrested for conduct that bore great similarity to
the circumstances surrounding her prior crimes. Given
defendant's extensive criminal history relating to her drug use,
which resulted in a prior six-year prison sentence, as well as
the similar nature of her latest crime, County Court did not
abuse its discretion in either terminating her from the JDP or
imposing the concededly lawful 6½-year prison sentence against
her (see People v Secore, 102 AD3d 1059, 1060 [2013], lv denied
21 NY3d 1019 [2013]; People v Dawley, 96 AD3d at 1109).
                        -3-                  105289

McCarthy, J.P., Garry, Egan Jr. and Clark, JJ., concur.



ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
