Opinion
KA 02-02687.
September 30, 2005.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered August 2, 2002. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the first degree.
MICHAEL J. PULVER, NORTH SYRACUSE, FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Green, J.P., Scudder, Kehoe, Smith and Lawton, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20), defendant contends that Supreme Court failed to exercise its discretion with respect to sentencing but instead erroneously deemed itself bound by the sentencing commitment made in connection with the plea bargain ( see People v. Farrar, 52 NY2d 302, 305-307; see also People v. Schafer, 19 AD3d 1133; People v. Figueroa, 17 AD3d 1130, 1131; People v. Stanley, 309 AD2d 1254). The record does not support defendant's contention. Rather, we conclude that the comments of the court did not indicate any misapprehension on its part that it lacked discretion in the matter of sentencing. "In any event, a court's expression of an erroneous belief that it lacks any sentencing discretion following a negotiated plea . . . will warrant a [remittal] for resentencing only where the record indicates possible harm flowing from the court's error, such as some indication of reservation by the court as to the fairness of the sentence to be imposed" ( People v. Diaz, 304 AD2d 468, 468, lv denied 100 NY2d 561; see People v. Fishman, 14 AD3d 411; People v. Pena, 309 AD2d 687, 688, lv denied 2 NY3d 744; People v. Barzge, 244 AD2d 213, lv denied 91 NY2d 889). Here, the court expressed no reservation with respect to the fairness to defendant of the sentence to be imposed in accordance with the plea bargain, and the record does not otherwise indicate "possible harm flowing from the court's [alleged] error" ( Diaz, 304 AD2d at 468).