Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Deborah Stevens Modica, J.), rendered April 19, 2007. The judgment convicted defendant, upon his plea of guilty, of petit larceny.

Judgment of conviction affirmed.

Defendant pleaded guilty to petit larceny under an information that charged him with that offense as well as three others. Although defendant was a repeat offender, and although the maximum authorized sentence for petit larceny is one year (see Penal Law §§ 70.15 [1]; 155.25), the court agreed to a sentence of five months as a part of the plea agreement, and permitted defendant to remain at liberty pending sentencing. The court warned defendant, however, that it would impose the maximum sentence of one year if he did not "come back voluntarily" on the scheduled sentencing date. Defendant was arrested on an unrelated charge prior to the scheduled sentencing date, and did not appear on that date. On a subsequent sentencing date, the court imposed a sentence of one year.

Defendant notes that it was not a condition of the plea agreement that he not be arrested. He argues that the record establishes that the court imposed the one-year sentence not based on his nonappearance on the initial scheduled sentencing date, but, rather, as a result of his arrest on the unrelated charge. He contends that, because the arrest did not constitute a violation of a plea [*2]condition, the court should not have departed from the promised sentence without offering him the opportunity to withdraw his plea (see People v Selikoff, 35 NY2d 227 [1974]).

Defendant's argument is not preserved, as he neither alerted the Criminal Court to this issue nor moved to withdraw his plea prior to sentence (see People v King, 55 AD3d 362 [2008]). We note that defendant has made no claim that his arrest on the unrelated matter was improper or unwarranted (see People v McDaniels, 111 AD2d 876 [1985]). We further note that the court could properly have imposed the one-year sentence on the ground that defendant, by voluntarily engaging in conduct that resulted in his arrest, failed to abide by the express plea condition that he appear on the initial scheduled sentencing date (see id.; see also People v Parker, 172 AD2d 697 [1991]). Under the totality of the circumstances, we decline to exercise our interest of justice jurisdiction to reach the issue presented.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: February 27, 2009