Opinion
2626-2626A
December 19, 2002.
Judgments, Supreme Court, New York County (Felice Shea, J.), rendered June 11, 1999, convicting defendant, upon his plea of guilty, of two counts of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 3½ to 7 years, unanimously affirmed.
Zachary H. Johnson, for respondent.
Judith Stern, for defendant-appellant.
Before: WILLIAMS, P.J., ANDRIAS, BUCKLEY, LERNER, GONZALEZ, JJ.
Since defendant's motion to withdraw his plea was made on completely different grounds from those raised on appeal, his present claim that the court was ambiguous in its warning of the consequences of a new arrest prior to sentencing is unpreserved (People v. Mackey, 77 N.Y.2d 846;People v. James, 236 A.D.2d 243, lv denied 90 N.Y.2d 904), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the plea was voluntarily, knowingly and intelligently entered and that the court properly imposed an enhanced sentence of 3½ to 7 years, instead of the promised sentence of 3 to 6 years, because defendant undisputedly violated a plea condition. In the plea colloquy, the court set forth certain conditions and adequately warned defendant that it would impose a higher sentence in the event that defendant breached any of them (see People v. Velez, 212 A.D.2d 647). This was separate and distinct from the court's earlier discussion of a completely different situation that would arise if the court decided, on the basis of an unfavorable probation report, that the promised sentence was too lenient, in which case defendant would be permitted to withdraw his plea.
We perceive no basis for reducing the sentence.
Motion seeking leave to file pro se supplemental brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.