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People v. Gary

Supreme Court of New York, Second Department

May 15, 2013

The People of the State of New York, respondent,
v.
Kevin Gary, appellant. Ind. No. 7373/07

Lynn W. L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Terrence F. Heller of counsel; Gregory Musso on the brief), for respondent.

REINALDO E. RIVERA, J.P. THOMAS A. DICKERSON JOHN M. LEVENTHAL SHERI S. ROMAN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Murphy, J.), rendered July 1, 2010, convicting him of robbery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant pleaded guilty in exchange for the Supreme Court's conditional promise that, if the defendant successfully completed a substance abuse treatment program, the indictment would be dismissed. However, the court explained to the defendant that, if he violated the terms of the plea agreement, he would be sentenced to an alternative sentence that included a determinate term of seven years of imprisonment, to be followed by a period of five years of postrelease supervision. The defendant concedes that he violated the terms of the plea agreement by leaving the treatment program without permission and against clinical advice. Although the defendant contends on appeal that the sentencing court abused its discretion, and violated his due process rights, by imposing the enhanced sentence, his claim, properly viewed, amounts to a request that we substitute our discretion for that of the sentencing court (see People v Suitte, 90 A.D.2d 80, 86; see also People v Emma, 101 A.D.3d 1146, 1147). The defendant's valid waiver of his right to appeal, however, forecloses appellate consideration of the defendant's contention that the sentencing court improvidently exercised its discretion in imposing the enhanced sentence (see People v Emma, 101 A.D.3d at 1147; People v Miles, 268 A.D.2d 489, 490). Although the defendant's alternative contention that the Supreme Court improperly delegated or failed to exercise its discretion at sentencing does survive the defendant's valid waiver of his right to appeal (see People v Nolcox, 40 A.D.3d 1128, 1128), this contention is unpreserved for appellate review (see People v Arrington, 94 A.D.3d 903, 903; People v Miles, 268 A.D.2d at 490; see also People v Mercado, 101 A.D.3d 755, 755, lv denied 20 N.Y.3d 1013) and, in any event, is without merit (see People v Nolcox, 40 A.D.3d at 1128; cf. People v Seymour, 21 A.D.3d 1292, 1292-1293; People v Belle, 192 A.D.2d 993, 994; compare People v Farrar, 52 N.Y.2d 302).

RIVERA, J.P., DICKERSON, LEVENTHAL and ROMAN, JJ., concur.


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