People v Viera

People v Viera 2011 NY Slip Op 07935 Decided on November 10, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 10, 2011
Saxe, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Román, JJ.
5991 5583/07

[*1]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.

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 AD3d 333 [2004], lv denied 3 NY3d 648 [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.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2011

CLERK