| People v Gary |
| 2013 NY Slip Op 03499 [106 AD3d 932] |
| May 15, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kevin Gary, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J.Dennehy, and Terrence F. Heller of counsel; Gregory Musso on the brief), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Murphy, J.), rendered July 1, 2010, convicting him of robbery in the second degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant pleaded guilty in exchange for the Supreme Court's conditionalpromise that, if the defendant successfully completed a substance abuse treatmentprogram, the indictment would be dismissed. However, the court explained to thedefendant that, if he violated the terms of the plea agreement, he would be sentenced toan alternative sentence that included a determinate term of seven years of imprisonment,to be followed by a period of five years of postrelease supervision. The defendantconcedes that he violated the terms of the plea agreement by leaving the treatmentprogram without permission and against clinical advice. Although the defendantcontends on appeal that the sentencing court abused its discretion, and violated his dueprocess rights, by imposing the enhanced sentence, his claim, properly viewed, amountsto a request that we substitute our discretion for that of the sentencing court (seePeople v Suitte, 90 AD2d 80, 86 [1982]; see also People v Emma, 101 AD3d 1146, 1147 [2012]).The defendant's valid waiver of his right to appeal, however, forecloses appellateconsideration of the defendant's contention that the sentencing court improvidentlyexercised its discretion in imposing the enhanced sentence (see People v Emma,101 AD3d at 1147; People v Miles, 268 AD2d 489, 490 [2000]). Although thedefendant's alternative contention that the Supreme Court improperly delegated or failedto exercise its discretion at sentencing does survive the defendant's valid waiver of hisright to appeal (see People vNolcox, 40 AD3d 1128, 1128 [2007]), this contention is unpreserved forappellate review (see People vArrington, 94 AD3d 903, 903 [2012]; People v Miles, 268 AD2d at490; see also People vMercado, 101 AD3d 755, 755 [2012], lv denied 20 NY3d 1013 [2013])and, in any event, is without merit (see People v Nolcox, 40 AD3d at 1128; cf. People v Seymour, 21AD3d 1292, 1292-1293 [2005]; People v Belle, 192 AD2d 993, 994 [1993];compare People v Farrar, 52 NY2d 302 [1981]). Rivera, J.P., Dickerson,Leventhal and Roman, JJ., concur.