People v. Lewis

246 A.D.2d 471, 667 N.Y.S.2d 247, 1998 N.Y. App. Div. LEXIS 646

Opinion

Judgment, Supreme Court, New York County (Paul Bookson, J.), rendered December 4, 1995, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

Since an objective reading of the minutes of the plea proceedings, the written plea agreement and the Drug Treatment Alternative to Prison program form indicate that defendant violated the terms of the plea bargain by twice being arrested prior to sentencing, the court properly refused to dismiss the indictment and to instead sentence defendant to the promised term of incarceration (see, People v Cataldo, 39 NY2d 578). The record, viewed as a whole, fails to support defendant’s interpretation of the plea agreement, under which any adjournment of his sentence would free him to commit new crimes and still receive the promised degree of leniency. In any event, defendant would not be entitled to specific performance, which is the only remedy sought on appeal. Concur—Sullivan, J. P., Ellerin, Tom and Andrias, JJ.