Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Daniel VIERA, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Matthew T. Murphy of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Matthew T. Murphy of counsel), for respondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered September 22, 2009, as amended November 23, 2009, 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 drug offender, to a term of 8 years, unanimously affirmed.
Defendant did not preserve his claim that his sentence violated his plea agreement ( see e.g. People v. Taylor, 5 A.D.3d 333, 773 N.Y.S.2d 555 [2004], lv. denied 3 N.Y.3d 648, 782 N.Y.S.2d 420, 816 N.E.2d 210 [2004] ), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits.
At the time of the plea, the court warned defendant that he was subject to a sentence of eight years if he “absconded” or “ran away” from a drug treatment program, but only five years if he merely failed to complete the program. It is undisputed that defendant left a program without permission. Although defendant
was not discharged from this program for absconding, but rather for using and selling drugs at the facility, the fact that the program elected to discharge defendant for even more serious misconduct does not negate the fact that he also absconded. Accordingly, the court properly exercised its discretion in imposing the agreed-upon sentence.