| People v Vaillant |
| 2010 NY Slip Op 06941 [77 AD3d 1389] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Alexander Vaillant,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), renderedJuly 22, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal possession ofstolen property in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed and the matter isremitted to Supreme Court, Erie County, for proceedings pursuant to CPL 460.50 (5).
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalpossession of stolen property in the fifth degree (Penal Law § 165.40), defendant contends thatSupreme Court erred in imposing an enhanced sentence without affording him an opportunity towithdraw his plea. That contention is not preserved for our review because defendant did not object tothe enhanced sentence, nor did he move to withdraw the plea or to vacate the judgment of conviction(see People v Fortner, 23 AD3d1058 [2005]; People v Sundown, 305 AD2d 1075 [2003]). In any event, that contentionlacks merit. "When a defendant violates a condition of the plea agreement, the court is no longer boundby the agreement and is free to impose a greater sentence without offering [the] defendant anopportunity to withdraw his [or her] plea" (People v Santiago, 269 AD2d 770, 770 [2000];see People v Figgins, 87 NY2d 840, 841 [1995]; People v Cato, 226 AD2d 1066[1996], lv denied 88 NY2d 877 [1996]). The court's "review of the presentence reportprovided a sufficient basis for the court to depart from the original sentencing promise" (People v Barahona, 51 AD3d 682[2008]), and we conclude that the court did not abuse its discretion in imposing an enhanced sentence(see People v Bush, 30 AD3d 1078[2006], lv denied 7 NY3d 785 [2006]).
Defendant also failed to preserve for our review his contention that the court abused its discretionin denying his request for youthful offender status (see People v Fields, 38 AD3d 1269 [2007], lv denied 8 NY3d984 [2007]; People v Waleski, 28AD3d 1159 [2006]). In any event, that contention lacks merit (see People v Washpun, 41 AD3d 1233[2007], lv denied 9 NY3d 883 [2007]; People v Potter, 13 AD3d 1191 [2004], lv denied 4 NY3d 889[2005]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra,Peradotto, Sconiers and Pine, JJ.