New York Supreme and/or Appellate Courts Appellate Division, First Department
June 28, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
People v Livingston
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.
Decided on June 28, 2012 Mazzarelli, J.P., Catterson, Moskowitz, Manzanet-Daniels, Roman, JJ.
Judgments, Supreme Court, New York County (Michael R. Sonberg, J.), rendered April 27, 2010, convicting defendant, upon his pleas of guilty, of criminal sale of a controlled substance in the third and fourth degrees, and sentencing him to an aggregate term of 4½ years, unanimously affirmed.
Defendant failed to preserve, and expressly waived, his claim that the court improperly enhanced his negotiated sentence, and we decline to review it in the interest of justice. The court offered to conduct a hearing on the issue of whether defendant violated a term of the plea agreement, but defendant declined that offer. Instead, defendant withdrew his challenge to the imposition of additional prison time and accepted the court's six-month enhancement of the promised sentence.
As an alternative holding, we reject defendant's claim on the merits. The record supports the court's finding that defendant violated a plea condition requiring him to be truthful with the Department of Probation concerning the underlying facts of the crimes to which he pleaded guilty (see People v Hicks, 98 NY2d 185, 189 ).
We perceive no other basis for reducing the enhanced sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 28, 2012
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