People v Barnes

People v Barnes 2007 NY Slip Op 09954 [46 AD3d 375] December 18, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

The People of the State of New York, Respondent,
v
David Barnes, Appellant.

—[*1] Eugene B. Nathanson, New York City, for appellant.

Robert M. Morgenthau, District Attorney, New York (Paula-Rose Stark of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 28, 2005, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of two years, unanimously affirmed.

Defendant's claim that the court conducted an insufficient inquiry as to whether he violated the terms of his plea agreement is unpreserved (see e.g. People v Darcy, 34 AD3d 230 [2006], lv denied 8 NY3d 879 [2007]; People v Delgado, 14 AD3d 449 [2005], lv denied 4 NY3d 853 [2005]), and we decline to review it in the interest of justice. Were we to review this claim, we would find that after a sufficient inquiry into defendant's explanation for his departure from a rehabilitation program, the sentencing court properly determined that defendant violated his plea agreement by leaving the program without permission and failing to return (see People v Outley, 80 NY2d 702, 712 [1993]). Concur—Tom, J.P., Friedman, Williams, McGuire and Kavanagh, JJ.