People v Stubbs

2010 NY Slip Op 05811 [75 AD3d 664]

July 1, 2010

Appellate Division, Third Department

As corrected through Wednesday, September 1, 2010

The People of the State of New York, Respondent, v Steven M.Stubbs, Appellant.

—[*1]Pamela A. Fairbanks, Ithaca, for appellant.

Gerald A. Keene, District Attorney, Owego, for respondent.

Stein, J. Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.),rendered March 2, 2009, convicting defendant upon his plea of guilty of the crime of drivingwhile intoxicated.

Defendant entered into a plea agreement whereby he would plead guilty to driving whileintoxicated, in full satisfaction of a two-count indictment, with the understanding that if hesuccessfully completed a drug treatment program, the People would recommend a sentence offive years of probation. As part of the plea, defendant also acknowledged that if he was arrestedbased upon reasonable cause while in the treatment program, such an arrest would be groundsfor immediate termination from the program and could result in a maximum sentence of21/3 to 7 years in prison. Prior to his completion of the treatment program,defendant was arrested in Pennsylvania and charged with, among other things, driving whileintoxicated. As a result, he was terminated from the program and County Court thereaftersentenced him to a prison term of 1 to 5 years. Defendant now appeals.

We affirm. Defendant's claim that he was denied due process when County Court failed tohold a hearing regarding the circumstances surrounding his failure to complete the drugtreatment program is not preserved for our review since he neither requested a hearing normoved to withdraw his plea (see Peoplev Delayo, 52 AD3d 1114, 1115 [2008], lv denied 11 NY3d 787 [2008]; People v Kitchens, 46 AD3d 577,578 [2007], lv denied 10 NY3d 767 [2008]). [*2]Regarding defendant's challenge to his enhanced sentence,inasmuch as the conditions of the plea agreement do not contravene statutory provisions orpublic policy and defendant was made aware at the time of the agreement of the maximumpotential sentence that County Court could impose for noncompliance, we cannot conclude thatCounty Court erred in imposing an enhanced sentence (see People v Fleming, 50 AD3d 1390, 1390-1391 [2008]). As todefendant's contention that his sentence was harsh and excessive, we discern neither an abuse ofdiscretion nor extraordinary circumstances warranting a reduction of the sentence (see People v Creech, 56 AD3d899, 900 [2008], lv denied 12 NY3d 815 [2009]). Defendant's remaining claimshave been considered and found to be unavailing.

Spain, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.