Opinion
April 15, 1991
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the sentence is affirmed.
We find that the defendant was properly sentenced in accordance with his plea agreement (see, People v. Kazepis, 101 A.D.2d 816), which was predicated upon his not being arrested until his scheduled sentencing, appearing for the sentencing as scheduled, and cooperating with the Probation Department. Thereafter he was arrested twice, for grand larceny in the fourth degree and for criminal sale of a controlled substance in the third degree, and he missed three sentencing dates — twice because he was incarcerated on new charges, and once because he was allegedly unaware of the adjourned sentencing date. He therefore violated the express conditions of the plea agreement, and the court properly imposed an enhanced sentence (see, People v. Selikoff, 35 N.Y.2d 227, cert denied 419 U.S. 1122; People v. Headley, 150 A.D.2d 490; People v. Sharlow, 116 A.D.2d 603; People v. McDaniels, 111 A.D.2d 876, 877). The fact that the proceedings with respect to the new charges were adjourned in contemplation of dismissal does not alter this result, as those new charges had not been finally dismissed as of the date of the defendant's sentencing (see, CPL 170.55, [7]), and an adjournment in contemplation of dismissal is not an adjudication on the merits (see, Hollender v Trump Vil. Coop, 58 N.Y.2d 420). We further note that, although the defendant was encouraged at the sentencing proceeding to explain his arrests as well as why he had not inquired as to his new sentencing date, the defendant failed to proffer any credible explanation (cf., People v. Kihm, 143 A.D.2d 199). Mangano, P.J., Brown, Sullivan, Harwood and Miller, JJ., concur.