Opinion
2012-03-1
The PEOPLE of the State of New York, Respondent, v. Derris STAPLETON, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered September 15, 2009, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of five years, unanimously affirmed.
Defendant did not preserve his claim that the court violated his due process rights by imposing an enhanced sentence, based on defendant's undisputed breach of his plea agreement, without offering him the opportunity to withdraw his plea ( see e.g. People v. Drew, 45 A.D.3d 441, 844 N.Y.S.2d 871 [2007], lv. denied 10 N.Y.3d 810, 857 N.Y.S.2d 43, 886 N.E.2d 808 [2008] ), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits, because the court specifically warned defendant of the consequences of violating the agreement ( see id.).
Defendant's argument that the court misapprehended its sentencing discretion is likewise unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits.
We perceive no basis for reducing the sentence.