People v. Anonymous

Judgment, Supreme *157Court, New York County (Carol Berkman, J.), rendered September 8, 2000, 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 offender, to a term of 3 to 6 years, and order, same court and Justice, entered on or about November 27, 2001, which denied defendant’s motion to vacate his conviction pursuant to CPL 440.10, unanimously affirmed.

Under the terms of defendant’s cooperation agreement and appeal waiver, the only issue properly before this Court is whether the People acted in an arbitrary and capricious manner in determining whether defendant qualified for lenient treatment. Defendant waived a judicial determination of any factual issues concerning his compliance or noncompliance with the agreement (see People v Johnson, 291 AD2d 245 [2002], lv denied 98 NY2d 677 [2002]; People v Anonymous, 265 AD2d 200 [1999], lv denied 94 NY2d 916 [2000]). The People’s determination that defendant breached the agreement by failing to maintain contact with the police was made in good faith and was not arbitrary or capricious. For the same reasons, the court properly denied defendant’s CPL 440.10 motion. Concur — Tom, J.P., Saxe, Ellerin, Lemer and Gonzalez, JJ.