Opinion
November 13, 2000.
Appeal from Judgment of Cayuga County Court, Contiguglia, J. — Assault, 2nd Degree.
PRESENT: PINE, J. P., HAYES, WISNER, KEHOE AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant contends that County Court erred in failing to afford him an opportunity to withdraw his plea before imposing a greater sentence than agreed to at the time of the plea. Before sentencing the court learned that defendant was a second felony offender, so the promised sentence of 2 to 4 years' incarceration was not permitted for assault in the second degree, a class D violent felony. The court sentenced defendant to a determinate term of three years on each assault count, the minimum sentence for a second felony offense that is a class D violent felony offense ( see, Penal Law § 70.06 [c]). Defendant's contention is not preserved for our review and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]; People v. Luksch, 265 A.D.2d 895, lv denied 94 N.Y.2d 825).