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People v. Barnes

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 15, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
THEODORE BARNES, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered September 26, 2006, 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 31/2 to 7 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.

Andrias, J.P., McGuire, Moskowitz, Acosta, DeGrasse, JJ.

6902/03

The court properly exercised its discretion in determining that defendant's admitted violation of his plea agreement, by leaving a drug program without permission, disqualified him for the promised dismissal of the indictment. Defendant failed to preserve his claim that he was constitutionally entitled to a hearing (see People v Barnes, 46 AD3d 375 [2007], lv denied 10 NY3d 808 [2008]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The court made a thorough inquiry, and there was no need for a hearing (see People v Fiammegta, NY3d, 2010 NY Slip Op 01344, *5-*7 [Feb 16, 2010]). Even if, as defendant claimed, he left the program to take advantage of an employment opportunity, it remained undisputed that he left without permission and thus violated the plea agreement. The consequence of that violation was a discretionary determination for the court, and there was no factual issue upon which to hold an evidentiary hearing. Instead, the court "provided defendant with a reasonable opportunity to present his explanations for the violation" and properly rejected them (People v Villaneuva, 65 AD3d 939, 939 [2009], lv denied 13 NY3d 863 [2009]).

Defendant's excessive sentence claim is moot because he has been discharged from parole.

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

20100415

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