People v Stapleton

People v Stapleton 2012 NY Slip Op 01574 Decided on March 1, 2012 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 March 1, 2012
Tom, J.P., Friedman, Acosta, DeGrasse, Román, JJ.
6951 488/09

[*1]The People of the State of New York, Respondent,

v

Derris Stapleton, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Joanne
Legano Ross of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval
Simchi-Levi of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered September 15, 2009, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of five years, unanimously affirmed.

Defendant did not preserve his claim that the court violated his due process rights by imposing an enhanced sentence, based on defendant's undisputed breach of his plea agreement, without offering him the opportunity to withdraw his plea (see e.g. People v Drew, 45 AD3d 441 [2007], lv denied 10 NY3d 810 [2008]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits, because the court specifically warned defendant of the consequences of violating the agreement (see id.).

Defendant's argument that the court misapprehended its sentencing discretion is likewise unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits.

We perceive no basis for reducing the sentence.

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

ENTERED: MARCH 1, 2012

CLERK