People v. Lozado

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.), rendered March 28, 2000, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence. Ordered that-the judgment is affirmed. Contrary to the People’s contention, the record is insufficient to demonstrate that the defendant knowingly and voluntarily waived his right to appeal (see People v DeSimone, 80 NY2d 273 [1992]; People v Rowe, 277 AD2d 403 [2000]; People v Gladden, 267 AD2d 400 [1999]; People v McCaskell, 206 AD2d 547 [1994]). However, there is no merit to the defendant’s claim that the Supreme Court improperly denied his motion to withdraw his plea, which was made after he violated the plea agreement by failing to complete a drug treatment program (see People v Davis, 276 AD2d 497 [2000]; People v Cary, 261 AD2d 242 [1999]; People v McCain, 260 AD2d 407 [1999]). Furthermore, the sentence imposed by the Supreme Court, which was less severe than the sentence the defendant was warned he would receive if he failed to complete a drug treatment program, was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Feuerstein, J.P., Krausman, McGinity and Mastro, JJ., concur.