| People v Albergotti |
| 2010 NY Slip Op 02716 [72 AD3d 401] |
| April 1, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v AllenAlbergotti, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Matthew C. Williams of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered May 6, 2009,convicting defendant, upon his guilty plea, of forgery in the second degree, and sentencing him,as a second felony offender, to a term of 2½ to 5 years, unanimously modified, on the law,to the extent of reducing the mandatory surcharge and crime victim assistance fee from $300 and$25 to $250 and $20, respectively, and otherwise affirmed.
Defendant failed to preserve his claim that his due process rights were violated because thecourt allegedly failed to conduct an adequate inquiry as to whether he violated the terms of hisplea agreement (see People vBarnes, 46 AD3d 375 [2007], lv denied 10 NY3d 808 [2008]), and we declineto review it in the interest of justice. As an alternative holding, we also reject it on the merits.The sentencing court conducted a sufficient inquiry and properly concluded that two violationsof the plea agreement occurred, namely that defendant failed to appear in court for the scheduledsentencing and that he failed to cooperate with the Department of Probation. The court "provideddefendant with a reasonable opportunity to present his explanations for the violation[s]" andproperly rejected them (People vVillanueva, 65 AD3d 939 [2009], lv denied 13 NY3d 863 [2009]).
We do not agree with defendant's contention that no increase in the promised sentence waswarranted even if he did violate one or both conditions. Moreover, the increase the courtdetermined to impose, although not insubstantial, was not so severe as to constitute an abuse ofdiscretion. We perceive no other basis for reducing the sentence. However, as the Peopleconcede, the surcharge and crime victim assistance fee should have been based on the statute ineffect at the time of the crime. Concur—Gonzalez, P.J., Tom, Friedman, McGuire andAbdus-Salaam, JJ.