        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1389
KA 12-01729
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

                    V                             MEMORANDUM AND ORDER

SCOTT E. HODGINS, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered May 3, 2012. The judgment convicted defendant,
upon his plea of guilty, of driving while intoxicated, a class E
felony, criminal possession of a weapon in the fourth degree and
obstructing governmental administration in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of, inter alia, felony driving while
intoxicated (Vehicle and Traffic Law §§ 1192 [3]; 1193 [1] [c] [i]).
Pursuant to the plea agreement, County Court agreed to release
defendant under supervision and to adjourn sentencing in order to
afford defendant an opportunity to undergo a drug treatment program.
If defendant successfully completed the program, the court would
permit defendant to withdraw his plea and substitute therefor a plea
of guilty to misdemeanor driving while intoxicated. If, however,
defendant failed to complete the program successfully or otherwise
violated the terms and conditions of his release, the court would
sentence defendant to a term of incarceration. After defendant was
unsuccessfully discharged from drug treatment, the court sentenced
defendant to an indeterminate term of incarceration. Defendant failed
to preserve for our review his contention that the court abused its
discretion in determining that he had violated the terms of his
release inasmuch as he did not request a hearing on that issue, nor
did he move to withdraw his plea or to vacate the judgment of
conviction (see People v Malaj, 69 AD3d 487, 487-488, lv denied 15
NY3d 776; People v Saucier, 69 AD3d 1125, 1125-1126). Contrary to the
further contention of defendant, the court did not “reject” the plea
agreement. Rather, the court properly sentenced defendant to a term
of incarceration when defendant failed to abide by the conditions of
his plea and supervised release and, indeed, acknowledged that he had
                                 -2-                          1389
                                                         KA 12-01729

been unsuccessfully discharged from a residential drug treatment
placement (see People v Valencia, 3 NY3d 714, 715; Malaj, 69 AD3d at
488; People v Casey R.B., 35 AD3d 1200, 1201, lv denied 8 NY3d 920).

     Finally, defendant’s sentence is not unduly harsh or severe.




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
