PEOPLE v. SUAREZ

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

The PEOPLE of the State of New York, Respondent, v. Joey SUAREZ, Defendant-Appellant.

Decided: November 22, 2005

TOM, J.P., ANDRIAS, FRIEDMAN, SULLIVAN, MALONE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Eve Kessler of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Eldar Mayouhas of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John N. Byrne, J. at plea;  John P. Collins, J. at sentence), rendered January 29, 2004, convicting defendant of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

The court properly imposed the agreed-upon prison sentence without conducting a hearing after defendant concededly violated the conditions of his plea agreement by failing to complete a drug treatment program and had to be returned four months later after issuance of a warrant.   Although defendant contested certain allegations made against him by the drug program, the court instead relied upon uncontested facts (see People v. Valencia, 3 N.Y.3d 714, 786 N.Y.S.2d 374, 819 N.E.2d 990 [2004];  compare Torres v. Berbary, 340 F.3d 63 [2d Cir.2003] ). Despite the opportunity afforded him at sentencing, defendant did not provide any satisfactory explanation for his failure to advise the treatment program or the court of his problems instead of absconding (see People v. Cruz, 15 A.D.3d 240, 788 N.Y.S.2d 853 [2005], lv. denied 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325 [2005];  People v. Watson, 272 A.D.2d 270, 708 N.Y.S.2d 392 [2000], lv. denied 95 N.Y.2d 909, 716 N.Y.S.2d 650, 739 N.E.2d 1155 [2000] ).   Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.