PEOPLE v. MALAJ

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

The PEOPLE of the State of New York, Respondent, v. Prela MALAJ, Defendant-Appellant.

Decided: January 19, 2010

MAZZARELLI, J.P., SAXE, ACOSTA, DeGRASSE, MANZANET-DANIELS, JJ. Steven Banks, The Legal Aid Society, New York (Jeffrey Dellheim of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Craig A. Ascher of counsel), for respondent.

Judgment, Supreme Court, New York County (Brenda G. Soloff, J.), rendered November 10, 2005, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

 Defendant's claim that he was improperly sentenced without an evidentiary hearing on the issue of whether he violated the terms of his plea agreement is unpreserved since defendant neither requested a hearing nor moved to withdraw his plea (see People v. Cooper, 21 A.D.3d 836, 836, 803 N.Y.S.2d 3 [2005], lv. denied 6 N.Y.3d 774, 811 N.Y.S.2d 341, 844 N.E.2d 796 [2006] ), and we decline to review it in the interest of justice.   As an alternate holding, we find that the court properly sentenced defendant to a term of incarceration since he failed to comply with the terms of the plea agreement.   The court's decision was not based solely on a disputed hearsay allegation (compare Torres v. Berbary, 340 F.3d 63 [2d Cir.2003] ), but on defendant's well-documented failure to successfully complete a drug treatment program, along with the court's rejection of his excuses (see e.g. People v. Redwood, 41 A.D.3d 275, 838 N.Y.S.2d 66 [2007], lv. denied 9 N.Y.3d 880, 842 N.Y.S.2d 792, 874 N.E.2d 759 [2007] ).   There was no factual dispute requiring the taking of testimony (see People v. Valencia, 3 N.Y.3d 714, 786 N.Y.S.2d 374, 819 N.E.2d 990 [2004] ).