Appeal from judgments of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J., at plea; Arthur J. Doran, III, J., at sentence), rendered July 6, 2006. The judgments convicted defendant, upon his pleas of guilty, of two charges of criminal possession of a controlled substance in the seventh degree and sentenced him to consecutive, one-year terms of incarceration.

Judgments of conviction affirmed.

Defendant entered into a drug treatment program after having pleaded guilty to two charges of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) with the understanding that if he completed the one-year program successfully, this would satisfy his sentences, whereas if he did not, he would receive consecutive one-year jail terms. The terms of the contracts providing for the program were expressed in writing and defendant was represented by counsel at all stages of the proceeding. Defendant was terminated from the program without having successfully completed it. A pre-sentence report was submitted for the sentencing court's consideration and its recommendation was that defendant, a recidivist, be incarcerated. Defense counsel, while setting forth an argument requesting reconsideration by the court of the promised sentences, acknowledged that "there was one incident where [defendant] was thrown out" of the program and that "[t]here is no legal basis . . . to oppose the sentencing."

Upon this appeal, defendant's newly assigned counsel contends that defendant's unintentional, forced termination from the Drug Court Treatment Program does not sufficiently [*2]establish that he failed the program. It is further asserted, inter alia, that a "Drug Court Contract" signed by defendant and the attorneys fails to show the consequences of being thrown out of the program at the whim of a caseworker and allows it to be "concluded" that defendant unsuccessfully completed the program. It is also posited that defendant's mental health was never examined more fully to determine if his pleas were knowingly, voluntarily and intelligently entered.

At the outset, it should be noted that the record does not show whether defendant's termination from the drug treatment program resulted from his genuinely failing out of the program or from the whim of a caseworker. However, it does show that both defendant and his counsel were given the opportunity to address such issues and that defendant, upon being asked by the court why he had been "kicked out" of the drug treatment program, merely replied, "Arguing with the caseworker." Upon the record before us, therefore, we find that the court below did not improvidently exercise its discretion in imposing the previously agreed upon one-year jail sentences.

An examination of the Drug Court Treatment Program contract utilized by the court below reveals that it adequately apprised defendant of the consequences of being involuntarily terminated from the program. While the court below did not delve into the possible arbitrariness of enforcement of the contract in defendant's case, defendant never sought to bring up this issue, either at sentencing or by way of any subsequent application for CPL article 440 relief. Furthermore, any omission on the part of the court to conduct a hearing or further interrogation in this regard on its own initiative was justified by what defense counsel had already said and by the contents of the pre-sentence report.

Upon the present record, the court below should not be deemed to have erred in failing to order mental health examinations of defendant in the absence of any requests therefor (see People v Tortorici, 92 NY2d 757, 767 [1999]).

Rudolph, P.J., LaCava and Scheinkman, JJ., concur.
Decision Date: November 16, 2007