People v. Cooper

Judgment, Supreme Court, Bronx County (John N. Byrne, J.), rendered January 14, 2002, 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 offender, to a term of 4V2 to 9 years, unanimously affirmed.

Defendant’s claim that he was improperly sentenced under his plea of guilty to a felony, which had been accompanied by a promise that he could obtain a misdemeanor disposition upon successful completion of a drug program, is unpreserved since defendant neither requested a hearing nor moved to withdraw his plea (see People v Battle, 287 AD2d 361 [2001], lv denied 97 NY2d 751 [2002]), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court properly sentenced defendant to a term of incarceration since he failed to comply with the terms of the plea agreement. The court’s decision was not based solely on a disputed allegation (compare Torres v Berbary, 340 F3d 63 [2d Cir 2003]), but on defendant’s entire, well-documented pattern of unsatisfactory performance in connection with three different drug programs. Concur—Buckley, P.J., Andrias, Saxe and Williams, JJ.