People v. Garner

May 16, 2005
Reporters:
,

Ordered that the judgment is affirmed.

The defendant‘s ‍‌‌‌‌​‌‌‌‌​​‌​‌​‌‌‌​‌‌​​​​​‌​​​​‌‌​‌​‌‌​​​​‌‌‌​‌​​​​‌​‌​‌‌​‌​​‌‌‌​​​​​‌​​‌​‌​‌‌​​​‌​‌‌​​‌‌​‌​​​‌​‍general waiver of his right to appeal does not foreclose review of his contention that the Supreme Court denied him due process when it failed to hold a hearing on the issue of whether he violated a condition of his plea agreement (see People v Stowe, 15 AD3d 597 [2005]; People v ‍‌‌‌‌​‌‌‌‌​​‌​‌​‌‌‌​‌‌​​​​​‌​​​​‌‌​‌​‌‌​​​​‌‌‌​‌​​​​‌​‌​‌‌​‌​​‌‌‌​​​​​‌​​‌​‌​‌‌​​​‌​‌‌​​‌‌​‌​​​‌​‍Owens, 294 AD2d 603 [2002]; People v Saad, 286 AD2d 782 [2001]). However, this issue is unpreserved for appellate review since he never requested a hearing or moved to withdraw his plea on this ground (see People v Stowe, supra; People v Delgado, 14 AD3d 449 [2005]). In any event, the Supreme ‍‌‌‌‌​‌‌‌‌​​‌​‌​‌‌‌​‌‌​​​​​‌​​​​‌‌​‌​‌‌​​​​‌‌‌​‌​​​​‌​‌​‌‌​‌​​‌‌‌​​​​​‌​​‌​‌​‌‌​​​‌​‌‌​​‌‌​‌​​​‌​‍Court conducted a sufficient inquiry into the defendant‘s explanation for his departure from a drug program and properly concluded that the defendant violated the plea agreement by twice leaving the drug program against clinical advice and being returned to court on a bench warrant (see People v Delgado, supra; People v ‍‌‌‌‌​‌‌‌‌​​‌​‌​‌‌‌​‌‌​​​​​‌​​​​‌‌​‌​‌‌​​​​‌‌‌​‌​​​​‌​‌​‌‌​‌​​‌‌‌​​​​​‌​​‌​‌​‌‌​​​‌​‌‌​​‌‌​‌​​​‌​‍Battle, 287 AD2d 361 [2001]; People v Saad, supra; People v Miles, 268 AD2d 489, 490 [2000]). H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.