Appellate Division of the Supreme Court of New York, 2010

People v. Malaj

People v. Malaj
Appellate Division of the Supreme Court of New York · Decided January 19, 2010
69 A.D.3d 487; 894 N.Y.2d 31
People v. Malaj

Opinion of the Court

Defendant’s claim that he was improperly sentenced without *488an evidentiary hearing on the issue of whether he violated the terms of his plea agreement is unpreserved since defendant neither requested a hearing nor moved to withdraw his plea (see People v Cooper, 21 AD3d 836 [2005], lv denied 6 NY3d 774 [2006]), and we decline to review it in the interest of justice. As an alternate holding, we 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 hearsay allegation (compare Torres v Berbary, 340 F3d 63 [2d Cir 2003]), but on defendant’s well-documented failure to successfully complete a drug treatment program, along with the court’s rejection of his excuses (see e.g. People v Redwood, 41 AD3d 275 [2007], lv denied 9 NY3d 880 [2007]). There was no factual dispute requiring the taking of testimony (see People v Valencia, 3 NY3d 714 [2004]). Concur—Mazzarelli, J.E, Saxe, Acosta, DeGrasse and ManzanetDaniels, JJ.

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