Opinion
6564.
September 27, 2005.
Judgment, Supreme Court, Bronx County (John N. Byrne, J.), rendered January 14, 2002, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
Laura R. Johnson, The Legal Aid Society, New York (Jane Levitt of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jennifer Marinaccio of counsel), for respondent.
Before: Buckley, P.J., Andrias, Saxe and Williams, JJ.
Defendant's claim that he was improperly sentenced under his plea of guilty to a felony, which had been accompanied by a promise that he could obtain a misdemeanor disposition upon successful completion of a drug program, is unpreserved since defendant neither requested a hearing nor moved to withdraw his plea ( see People v. Battle, 287 AD2d 361, lv denied 97 NY2d 751), and we decline to review it in the interest of justice. Were we to review this claim, we would 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 allegation ( compare Torres v. Berbary, 340 F3d 63 [2d Cir 2003]), but on defendant's entire, well-documented pattern of unsatisfactory performance in connection with three different drug programs.