| People v Stokes |
| 2010 NY Slip Op 05809 [75 AD3d 662] |
| July 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Alexander L.Stokes, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered March 6, 2009, convicting defendant upon his plea of guilty of the crime of attemptedcriminal sale of a controlled substance in the third degree.
Defendant waived indictment and pleaded guilty to a superior court information charginghim with one count of attempted criminal sale of a controlled substance in the third degree. Hewaived his right to appeal as part of the plea agreement, and County Court deferred sentencing topermit his participation in the Albany County Drug Treatment Court program. County Courtadvised defendant, however, that his failure to successfully complete that program could result ina maximum sentence of four years in prison and two years of postrelease supervision. Defendantthereafter violated the terms of the participation agreement on multiple occasions. Rather thanundergo a hearing to determine if he had violated the terms of the agreement, defendant admittedto the violations in exchange for a prison sentence of three years and postrelease supervision oftwo years. County Court imposed that sentence, and defendant now appeals.
We affirm. Defendant's argument that he was deprived of a hearing to determine whether heviolated the participation agreement is not properly before us, as he failed to request a hearing ormove to withdraw his plea on that basis and, indeed, was aware of his right to a [*2]hearing but elected to forgo it and admit to the violations inexchange for a prison sentence below the potential maximum (see People v Valencia, 3 NY3d714, 715-716 [2004]; People vForkey, 72 AD3d 1209, 1210-1211 [2010]; People v Saucier, 69 AD3d 1125, 1125-1126 [2010]). Hisremaining contention, that the sentence imposed was harsh and excessive, is precluded by hisvalid appeal waiver (see People v Saucier, 69 AD3d at 1126; People v Conway, 45 AD3d 1055,1056 [2007], lv denied 10 NY3d 763 [2008]).
Cardona, P.J., Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.