People v. Malaj

69 A.D.3d 487, 894 N.Y.2d 31

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 2010
• Status: Published

Opinion

Defendant’s claim that he was improperly sentenced without an evidentiary hearing on the issue of whether he violated the terms of his plea agreement is unpreserved since defendant neither requested a hearing nor moved to withdraw his plea (see People v Cooper, 21 AD3d 836 [2005], lv denied 6 NY3d 774 [2006]), and we decline to review it in the interest of justice. As an alternate holding, we find that the court properly sentenced defendant to a term of incarceration since he failed to comply with the terms of the plea agreement. The court’s decision was not based solely on a disputed hearsay allegation (compare Torres v Berbary, 340 F3d 63 [2d Cir 2003]), but on defendant’s well-documented failure to successfully complete a drug treatment program, along with the court’s rejection of his excuses (see e.g. People v Redwood, 41 AD3d 275 [2007], lv denied 9 NY3d 880 [2007]). There was no factual dispute requiring the taking of testimony (see People v Valencia, 3 NY3d 714 [2004]). Concur—Mazzarelli, J.E, Saxe, Acosta, DeGrasse and ManzanetDaniels, JJ.