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People v. Malaj

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 19, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
PRELA MALAJ, DEFENDANT-APPELLANT.

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.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Saxe, Acosta, DeGrasse, Manzanet-Daniels, JJ.

3297/02

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 AD3d 836, 836 [2005], lv denied 6 NY3d 774 [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 F3d 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 AD3d 275 [2007], lv denied 9 NY3d 880 [2007]). There was no factual dispute requiring the taking of testimony (see People v Valencia, 3 NY3d 714 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100119

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