PEOPLE v. DELGADO

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Victor DELGADO, Defendant-Appellant.

Decided: January 27, 2005

BUCKLEY, P.J., MAZZARELLI, SULLIVAN, WILLIAMS, GONZALEZ, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Saadia Aleem of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Alexis Pimentel of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J. at plea;  John P. Collins, J. at sentence), rendered July 8, 2003, convicting defendant of criminal sale of a controlled substance in or near school grounds, and sentencing him to a term of 2 to 6 years, unanimously affirmed.

 Defendant's claim that he was entitled to a hearing on the issue of whether he violated the terms of his plea agreement is unpreserved since he never requested a hearing or moved to withdraw his plea (see e.g. 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 after a sufficient inquiry into defendant's explanation for his departure from a drug program, the sentencing court properly determined that defendant violated his plea agreement by leaving the program without obtaining permission or making any effort to return, and by having to be brought back to the court on a bench warrant four months later (see e.g. People v. Villar, 10 A.D.3d 564, 782 N.Y.S.2d 84 [2004] ).