Opinion
November 19, 1990
Appeal from the Supreme Court, Suffolk County (Rohl, J.).
Ordered that the judgment is modified, on the law, by deleting the provision thereof imposing, as an alternative to the fines, consecutive one-day terms of imprisonment for each $5 of the fines not paid by June 29, 1990; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court had clearly conditioned the imposition of the promised sentence upon the defendant's compliance with certain conditions, including the payment of a sum of money in the nature of restitution at the time of sentencing. While the defendant and his counsel were given ample opportunity to explain the defendant's failure to fulfill the conditions, the proffered explanations were properly found to be unsubstantiated and insufficient. Therefore, the defendant was not entitled to specific performance of the promised sentence (see, People v. Murello, 39 N.Y.2d 879; People v. Moore, 155 A.D.2d 696). The defendant's further contentions that he should have been given an opportunity to withdraw his plea of guilty are not preserved for appellate review (see, People v. Lopez, 71 N.Y.2d 662; People v. Pellegrino, 60 N.Y.2d 636; see also, People v. Ifill, 108 A.D.2d 202), and we decline to review them in the exercise of our interest of justice jurisdiction.
Since the defendant was, in effect, sentenced to the maximum term of imprisonment which could be imposed, the imposition, as an alternative to the fines, of additional consecutive one-day terms of imprisonment for each $5 of the fines not paid by June 29, 1990, was improper (see, CPL 420.10 [d]; People v. Baker, 130 A.D.2d 582, 583), and the sentence has been modified accordingly. If the fines are not paid, the People, if they be so advised, can seek to collect them pursuant to CPL 420.10 (6). However, we find no merit to the defendant's contentions that his sentence was either so disproportionate to the offenses as to constitute cruel and unusual treatment or excessive. We note that pursuant to Penal Law § 70.30 (1) (c), the aggregate maximum and minimum terms of the consecutive sentences imposed by the court are deemed to be equal to a term of 10 to 20 years' imprisonment, and, as so reduced, the sentences fall within the statutory limitations and do not have to be modified on that ground (see, People v. Moore, 61 N.Y.2d 575).
The defendant's remaining contentions are without merit. Thompson, J.P., Lawrence, Eiber and Ritter, JJ., concur.