                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 31, 2016                     107955
________________________________

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

JOSHUA J. LOVE,
                    Appellant.
________________________________


Calendar Date:    February 11, 2016

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

                              __________


     John A. Cirando, Syracuse, for appellant.

      Mary E. Rain, District Attorney, Canton (Ramy Louis of
counsel), for respondent.

                              __________


Devine, J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered October 21, 2013, convicting
defendant upon his plea of guilty of the crime of rape in the
third degree.

      In satisfaction of a three-count indictment, defendant
pleaded guilty to rape in the third degree and waived his right
to appeal. Pursuant to the terms of the plea agreement, County
Court placed defendant on interim probation for one year and
promised to impose a sentence of probation if he successfully
completed a substance abuse treatment program. Defendant was
informed by County Court that his failure to complete the
substance abuse treatment program could result in a sentence of
imprisonment of up to four years. Defendant was discharged from
                              -2-                107955

the treatment program for allegedly fraternizing with a female
patient despite previously being directed not to be alone with
female patients. County Court denied defense counsel's request
for a hearing to dispute the basis for defendant's discharge and,
finding that it was no longer bound by the plea agreement,
sentenced defendant to a prison term of 3½ years to be followed
by eight years of postrelease supervision. Defendant now
appeals.

      We are unpersuaded by defendant's contention that the
appeal waiver is invalid. The record reflects that County Court
explained, and defendant acknowledged that he understood, the
separate and distinct nature of the waiver of the right to appeal
prior to executing a detailed written waiver in open court. As
such, defendant knowingly, voluntarily and intelligently waived
his right to appeal (see People v Bethea, 133 AD3d 1033, 1033
[2015]; People v Beblowski, 131 AD3d 1303, 1304 [2015], lv denied
26 NY3d 1085 [2015]). Defendant's challenge to the factual
sufficiency of the plea allocution is precluded by that valid
appeal waiver (see People v Jackson, 128 AD3d 1279, 1280 [2015],
lv denied 26 NY3d 930 [2015]; People v Bryant, 128 AD3d 1223,
1224 [2015], lv denied 26 NY3d 926 [2015]). Defendant's further
contention that the plea was not voluntary survives the appeal
waiver, but is nevertheless unpreserved as the record does not
reflect that he made any postallocution motion to withdraw his
plea (see People v Kormos, 126 AD3d 1039, 1040 [2015]).

      Next, defendant contends that his due process rights were
violated by the failure of County Court to conduct a hearing
prior to imposing the enhanced sentence. Initially, we note that
defendant's waiver of appeal does not preclude our review of this
issue (see People v Dissottle, 68 AD3d 1542, 1544 [2009], lv
denied 14 NY3d 799 [2010]). Turning to the merits, "it is not
practical to require an evidentiary hearing every time a
defendant disputes discharge from a drug treatment program for
reasons unrelated to making satisfactory progress in treatment"
(People v Fiammegta, 14 NY3d 90, 98 [2010]). However, "when a
program discharges a defendant for misconduct, the court must
carry out an inquiry of sufficient depth to satisfy itself that
there was a legitimate basis for the program's decision, and must
explain, on the record, the nature of its inquiry, its
                              -3-                  107955

conclusions, and the basis for them" (id. at 98; see People v
Valencia, 3 NY3d 714, 715 [2004]). Here, defendant denied any
misconduct and alleged, among other things, that he was not
deliberately fraternizing with a female patient and that she had
followed him into a room he was cleaning. County Court
referenced a "discharge summary" in determining that no further
inquiry was required and, while it is somewhat hazy as to whether
the trial court reviewed that document, there is no question that
the People and defense counsel did so prior to sentencing. Our
review of the discharge summary discloses that it in no way
addresses defendant's assertion that the violation of program
rules on his part was inadvertent and, as such, we cannot
conclude that County Court made a sufficient inquiry into the
reasons for his discharge (see People v Fiammegta, 14 NY3d at
98-99; People v Hill, 77 AD3d 518, 518 [2010]; cf. People v
McDevitt, 97 AD3d 1039, 1041 [2012], lvs denied 20 NY3d 987
[2012]). Thus, the sentence must be vacated and the matter
remitted for resentencing.

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



      ORDERED that the judgment is modified, on the law and the
facts, by vacating the sentence imposed; matter remitted to the
County Court of St. Lawrence County for further proceedings not
inconsistent with this Court's decision; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
