Opinion
July 24, 1986
Appeal from the County Court of Albany County (Harris, J.).
On September 21, 1982, a Grand Jury returned a two-count indictment charging defendant with criminal possession of a controlled substance in both the third and fourth degrees, class B and C felonies, respectively. Following negotiations between the District Attorney, defendant and his counsel, the former moved to reduce the second count of the indictment to attempted criminal possession of a controlled substance in the fourth degree, a class D felony, and urged that a plea thereto be accepted in full satisfaction of the indictment. Prior to granting the motion and accepting the plea, County Court thoroughly instructed defendant as to his rights and options and advised defendant that if he pleaded to the reduced charge, he would receive a prison sentence no greater than one having as its minimum 2 1/3 years and as its maximum 7 years. County Court further advised that the precise sentence would have to await its examination of the presentence report and consideration of counsel's remarks at sentencing. After consultation with his attorney, defendant expressed his desire to plead guilty. The motion of the District Attorney was granted and defendant's plea to the reduced charge was accepted. Later, defendant was sentenced to a prison term of 2 1/3 to 7 years.
Defendant now appeals upon the sole ground that the sentence was unduly harsh and excessive. We first observe that CPL 450.10, to the extent that it impaired an appeal as of right, has been found to be violative of the N Y Constitution (People v Pollenz, 67 N.Y.2d 264) and, accordingly, we turn to the merits.
Prefatorily, the sentence imposed was within permissible limits (Penal Law § 220.09; §§ 110.00, 70.00 [2] [d]). That leniency was extended is clearly demonstrated by the grant of the motion to reduce the charge and by acceptance of the plea to the reduced charge in full satisfaction of the indictment (see, People v Bass, 92 A.D.2d 1062). Any and all commitments to defendant were fully complied with. Given these circumstances, defendant's unenviable record and the quantity of heroin involved, it cannot be said that County Court abused its discretion, and no extraordinary circumstances warranting our interference with the sentence have been demonstrated (see, People v Whiting, 89 A.D.2d 694; People v Harris, 57 A.D.2d 663).
Judgment affirmed. Mahoney, P.J., Main, Casey, Yesawich, Jr., and Harvey, JJ., concur.