PECK, KENLEY, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1148
KA 08-00330
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KENLEY PECK, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD 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 January 8, 2008. The appeal was held by this
Court by order entered December 23, 2011, decision was reserved and
the matter was remitted to Onondaga County Court for further
proceedings (90 AD3d 1500). The proceedings were held and completed
(Jeffrey R. Merrill, A.J.).
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 burglary in the third degree (Penal Law §
140.20). This Court previously held the case, reserved decision and
remitted the matter to County Court “to conduct an inquiry to
determine whether there was a legitimate basis for defendant’s
termination from the drug treatment program, including whether
defendant’s postplea arrests were without foundation” (People v Peck,
90 AD3d 1500, 1501). We conclude that, upon remittal, the court
conducted a sufficient inquiry pursuant to People v Outley (80 NY2d
702, 713) to satisfy itself that defendant’s postplea arrest in
Camillus, New York had a legitimate basis and thus constituted a
violation of the conditions of the drug treatment program and the plea
agreement (see People v Fiammegta, 14 NY3d 90, 97; People v Marshall,
231 AD2d 893, 894-895, lv denied 89 NY2d 866). Inasmuch as we
conclude that defendant’s arrest in Camillus justified his removal
from the drug treatment program, we need not address defendant’s
remaining contentions.
Entered: November 16, 2012 Frances E. Cafarell
Clerk of the Court