Opinion
14653 Ind. No. 299/18 Case No. 2019-4595
11-18-2021
The PEOPLE of the State of New York, Respondent, v. James KELLY, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Hannah Gladstein of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Hannah Gladstein of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Diana J. Lewis of counsel), for respondent.
Kapnick, J.P., Webber, Oing, Moulton, Rodriguez, JJ.
Judgment, Supreme Court, Bronx County (George Villegas, J. at plea; Raymond Bruce, J. at sentencing), rendered August 9, 2018, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of three years, unanimously affirmed.
Defendant's claim that the sentencing court violated his due process rights by failing to conduct an inquiry and make findings as to the circumstances of his leaving two drug treatment programs is unpreserved. Defendant never requested any such inquiry and findings, and did not move to withdraw his plea on this or any other ground (see e.g. People v. Malaj, 69 A.D.3d 487, 894 N.Y.S.2d 31 [1st Dept. 2010], lv denied 15 N.Y.3d 776, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010] ). Counsel's statement at sentencing was not a request for an inquiry and did not raise a factual dispute. We decline to review defendant's claim in the interest of justice. As an alternative holding, we reject it on the merits. The court was not required to make a further inquiry before imposing the negotiated alternative prison sentence. Defense counsel acknowledged that defendant voluntarily and without permission, left each program thereby violating the conditions of the plea agreement. It is also undisputed that defendant was subsequently arrested and convicted of additional crimes, also in violation of his plea agreement. Accordingly, a further inquiry was not required (see People v. Valencia, 3 N.Y.3d 714, 786 N.Y.S.2d 374, 819 N.E.2d 990 [2004] ), and the court properly found that defendant had forfeited the opportunity for a more lenient disposition.
Finally, we find that defendant made a valid waiver of his right to appeal. People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016]. Even assuming the waiver was not valid, we perceive no basis for reducing the sentence.