PEOPLE v. COOPER (2005)

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 4 1/212 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 A.D.2d 361, 731 N.Y.S.2d 615 [2001], lv. denied 97 N.Y.2d 751, 742 N.Y.S.2d 610, 769 N.E.2d 356 [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 F.3d 63 [2d Cir.2003] ), but on defendant's entire, well-documented pattern of unsatisfactory performance in connection with three different drug programs.