PEOPLE v. NUNEZ (2008)

Judgment, Supreme Court, Bronx County (Ethan Greenberg, J. at plea;  Seth L. Marvin, J. at sentence), rendered October 28, 2005, convicting defendant 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.

At the plea proceeding, the court offered defendant an opportunity to avoid incarceration if he completed a drug treatment program.   Then, assuming the satisfaction of other plea conditions, he would be allowed to withdraw his plea to a felony charge and to instead plead guilty to a misdemeanor charge, for which he would be sentenced to time served.   It is undisputed that defendant failed to complete the drug treatment program.   Accordingly, he was properly sentenced under his plea to a felony.   On appeal, defendant asks that we exercise our interest of justice jurisdiction to allow him to make another attempt to complete a drug treatment program and thus avail himself of the opportunity to withdraw his plea and be sentenced to a non-incarceration alternative.   Even assuming that what defendant is asking this Court to do is to vacate his sentence and restore him to his post-plea, pre-sentencing status, we decline to do so.   The sentencing court properly exercised its discretion when it determined that defendant was not deserving of another opportunity.