PEOPLE v. GARCIA (2009)

Judgment, Supreme Court, New York County (Renee A. White, J. at violation of plea agreement hearing;  Ronald A. Zweibel, J. at plea and sentence), rendered May 15, 2008, convicting defendant of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

 Regardless of whether defendant's waiver of his right to appeal forecloses review of the sufficiency of the evidence that he violated the terms of his plea agreement by failing to complete a drug treatment program, the court properly found that defendant had violated the rules of the program.   A counselor at the treatment facility testified that defendant was found in possession of a syringe cap and a glassine envelope containing what appeared to be heroin.   This was sufficient for the court to find that defendant had violated the program's rules and had been properly dismissed from it, despite the fact that the contraband items had been discarded without being tested.   We find no reason to disturb the hearing court's credibility determination regarding the counselor's testimony.

 Defendant's valid waiver of his right to appeal forecloses review of his excessive sentence argument.   As an alternative holding (see People v. Callahan, 80 N.Y.2d 273, 285, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ), we perceive no basis for reducing the sentence.