People v Garcia

People v Garcia 2009 NY Slip Op 09376 [68 AD3d 560] December 17, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Hector Garcia, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Vincent Rivellese of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J., at violation of plea agreement hearing; Ronald A. Zweibel, J., at plea and sentence), rendered May 15, 2008, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of five years, unanimously affirmed.

Regardless of whether defendant's waiver of his right to appeal forecloses review of the sufficiency of the evidence that he violated the terms of his plea agreement by failing to complete a drug treatment program, the court properly found that defendant had violated the rules of the program. A counselor at the treatment facility testified that defendant was found in possession of a syringe cap and a glassine envelope containing what appeared to be heroin. This was sufficient for the court to find that defendant had violated the program's rules and had been properly dismissed from it, despite the fact that the contraband items had been discarded without being tested. We find no reason to disturb the hearing court's credibility determination regarding the counselor's testimony.

Defendant's valid waiver of his right to appeal forecloses review of his excessive sentence argument. As an alternative holding (see People v Callahan, 80 NY2d 273, 285 [1992]), we perceive no basis for reducing the sentence. Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Acosta and RomÁn, JJ.