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People v. Stokes

State of New York Supreme Court, Appellate Division Third Judicial Department


July 1, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ALEXANDER L. STOKES, APPELLANT.

The opinion of the court was delivered by: Peters, J.

MEMORANDUM AND ORDER

Calendar Date: June 3, 2010

Before: Cardona, P.J., Peters, Spain, McCarthy and Egan Jr., JJ.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered March 6, 2009, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant waived indictment and pleaded guilty to a superior court information charging him with one count of attempted criminal sale of a controlled substance in the third degree. He waived his right to appeal as part of the plea agreement, and County Court deferred sentencing to permit his participation in the Albany County Drug Treatment Court program. County Court advised defendant, however, that his failure to successfully complete that program could result in a maximum sentence of four years in prison and two years of postrelease supervision. Defendant thereafter violated the terms of the participation agreement on multiple occasions. Rather than undergo a hearing to determine if he had violated the terms of the agreement, defendant admitted to the violations in exchange for a prison sentence of three years and postrelease supervision of two years. County Court imposed that sentence, and defendant now appeals.

We affirm. Defendant's argument that he was deprived of a hearing to determine whether he violated the participation agreement is not properly before us, as he failed to request a hearing or move to withdraw his plea on that basis and, indeed, was aware of his right to a hearing but elected to forgo it and admit to the violations in exchange for a prison sentence below the potential maximum (see People v Valencia, 3 NY3d 714, 715-716 [2004]; People v Forkey, 72 AD3d 1209, 1210-1211 [2010]; People v Saucier, 69 AD3d 1125, 1125-1126 [2010]). His remaining contention, that the sentence imposed was harsh and excessive, is precluded by his valid appeal waiver (see People v Saucier, 69 AD3d at 1126; People v Conway, 45 AD3d 1055, 1056 [2007], lv denied 10 NY3d 763 [2008]).

Cardona, P.J., Spain, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

20100701

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