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

295
KA 13-00527
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MAXIE R. SHIPP, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered January 28, 2013. The judgment convicted
defendant, upon his plea of guilty, of grand larceny in the fourth
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 grand larceny in the fourth degree (Penal
Law § 155.30 [1]). The plea agreement provided that defendant would
participate in a judicial diversion program, and that he would be
permitted to withdraw his plea and instead plead guilty to a
misdemeanor with a promised sentence of no more than three years of
probation if he successfully completed a drug treatment program,
whereas he would be sentenced to a term of imprisonment if he was
unsuccessful in the drug treatment program. The contract for the
judicial diversion program provided that defendant was responsible for
keeping all of his court dates, and that he could be terminated from
the diversion program in the discretion of County Court for any
violation of the contract. Defendant was terminated from drug
treatment in April 2012 and failed to appear for an ensuing court
appearance. He was returned to court on a bench warrant in July 2012,
and the court thereafter sentenced him to an indeterminate term of
imprisonment.

     We reject defendant’s contention that the court failed to conduct
a sufficient inquiry to determine whether he violated the conditions
of his contract for the judicial diversion program before sentencing
him (see generally People v Fiammegta, 14 NY3d 90, 96-98; People v
Valencia, 3 NY3d 714, 715-716). Inasmuch as defendant’s failure to
appear in court after his termination from drug treatment “constituted
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                                                         KA 13-00527

a proper basis for the court’s finding of noncompliance, it was
unnecessary for the court to inquire into defendant’s complaints about
the suitability of the [treatment] program and the circumstances of
his termination” (People v Matosevic, 136 AD3d 437, 437; see Valencia,
3 NY3d at 715-716; People v Cruz, 15 AD3d 240, 240-241, lv denied 4
NY3d 852; see generally People v Ferguson, 113 AD3d 874, 874-875, lv
denied 23 NY3d 1061; People v Hodgins, 113 AD3d 1134, 1134-1135). We
note that defendant has not alleged that he was unaware of the
scheduled court appearance, nor has he otherwise explained his failure
to appear.




Entered:   April 29, 2016                      Frances E. Cafarell
                                               Clerk of the Court
