Opinion
(1715) KA 98-05012
December 21, 2001.
(Appeal from Judgment of Monroe County Court, Bristol, J. — Grand Larceny, 3rd Degree.)
PRESENT: GREEN, J.P., KEHOE, BURNS, GORSKI AND LAWTON, JJ.
Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum:
Defendant appeals from a judgment convicting her upon her plea of guilty of grand larceny in the third degree (Penal Law § 155.35) and sentencing her as a second felony offender to an indeterminate term of incarceration of 3 to 6 years. Although defendant failed to preserve for our review her contention that County Court erred in imposing an enhanced sentence based upon her postplea conduct ( see, CPL 470.05; People v. Perry, 252 A.D.2d 990, lv denied 92 N.Y.2d 929), we nevertheless exercise our power to address that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]) and modify the judgment by vacating the sentence and imposing the bargained-for sentence of an indeterminate term of incarceration of 2 to 4 years. The court erred in enhancing the sentence based solely upon its subjective determination that defendant failed to comply with the condition that she respond truthfully and consistently to questions posed by the Probation Department ( see, People v. Parker, 271 A.D.2d 63, 70, lv denied 95 N.Y.2d 967).