People v. Maglione

18 A.D.3d 670, 794 N.Y.S.2d 908, 2005 N.Y. App. Div. LEXIS 5316

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 2005
• Status: Published

Opinion

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Ferdinand, J.), imposed March 8, 2004, upon his conviction of criminal sale of a controlled substance in the fifth degree, after remittitur from this Court for resentencing (see People v Maglione, 305 AD2d 426 [2003]).

Ordered that the resentence is affirmed.

The defendant’s contention that the Supreme Court improperly found that he violated a condition of his plea agreement is unpreserved for appellate review (see People v Harris, 303 AD2d 602 [2003]). In any event, the contention is without merit. Thus, the Supreme Court was free to impose an enhanced sentence (see People v Hicks, 98 NY2d 185, 188-189 [2002]; People v Pike, 276 AD2d 649 [2000]).

We note that the Supreme Court resentenced the defendant to a lesser sentence than it promised the defendant he would face if he did not comply with the terms of the plea agreement. Under the circumstances, the defendant cannot now be heard to complain (People v Gayle, 224 AD2d 710 [1996]; People v White, 215 AD2d 791, 792 [1995]). Krausman, J.P., Crane, Rivera and Fisher, JJ., concur.