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

170
KA 11-01543
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FREDERICK BONA, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Jeffrey R.
Merrill, A.J.), rendered April 5, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a
controlled substance in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the motion is granted, the plea is
vacated, and the matter is remitted to Onondaga County Court for
further proceedings on the indictment.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of criminal possession of a controlled
substance in the fifth degree (Penal Law § 220.06 [1]). We agree with
defendant that he should have been permitted to withdraw his plea.
Defendant was arraigned on an indictment before County Court (Fahey,
J.). The matter was then transferred to the Syracuse Community
Treatment Court (drug court) for an alcohol and substance abuse
evaluation and consideration of judicial diversion pursuant to CPL
216.05 (1). The parties and the drug court, i.e., Acting County Court
Judge Merrill, agreed to defendant’s participation in alcohol and
substance abuse treatment (see CPL 216.05 [4]), and defendant entered
his plea. Although at the time of the plea the drug court indicated
that there would be a “[d]rug [c]ourt contract,” at no time did
defendant “agree on the record or in writing to abide by the release
conditions” of drug court (CPL 216.05 [5]). Rather, when defendant
returned to drug court a few weeks later to sign the contract, he
decided to forego judicial diversion. When the drug court indicated
that it would proceed to sentencing, defendant moved to withdraw his
plea, and the motion was denied.

     We agree with defendant that he never entered judicial diversion
and thus that the drug court should have granted his motion and
                                 -2-                           170
                                                         KA 11-01543

transferred the matter back to County Court for further proceedings.
We disagree with the drug court that defendant entered judicial
diversion and then voluntarily terminated his participation pursuant
to CPL 216.05 (9) (e). There was never an order issued pursuant to
CPL 216.05 (4) granting judicial diversion and, although a plea was
entered pursuant to that section, there was no agreement by defendant
on the record or in writing to the terms and conditions of drug court
as set forth in CPL 216.05 (5).




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
