PEOPLE v. VARGAS (2019)

Judgment, Supreme Court, New York County (Richard M. Weinberg, J. at plea;  Patricia M. Nuñez, J. at sentencing), rendered February 6, 2018, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of two years, unanimously affirmed.

Defendant's challenges to the voluntariness of his plea are unpreserved (see People v. Conceicao, 26 N.Y.3d 375, 382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ), and we decline to review them in the interest of justice.  As an alternative holding, we find that the record as a whole establishes that the plea was knowingly, intelligently and voluntarily made (see generally People v. Fiumefreddo, 82 N.Y.2d 536, 544, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ).  The plea colloquy, along with the written plea that defendant had discussed with counsel and signed, sufficiently advised defendant of the potential duration and completion requirements of the drug program that he was entering in order to earn dismissal of the charges.

Defendant also failed to preserve his argument that the court should have held a hearing as to his compliance with the program's requirements, and we likewise decline to review it in the interest of justice.  As an alternative holding, we find that defendant was not entitled to a hearing (see People v. Fiammegta, 14 N.Y.3d 90, 896 N.Y.S.2d 735, 923 N.E.2d 1123 [2010];  People v. Stephens, 108 A.D.3d 414, 967 N.Y.S.2d 731 [1st Dept. 2013], lv denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ), because the record, including defendant's own admissions, clearly established his violation of his plea agreement and forfeiture of the opportunity for a dismissal.

We have considered and rejected defendant's ineffective assistance of counsel claims relating to the lack of preservation (see People v. Benevento, 91 N.Y.2d 708, 713–14, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).