Opinion
KA 03-00665.
Decided April 30, 2004.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.), rendered May 13, 2002. The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree and grand larceny in the third degree.
ERICKSON WEBB SCOLTON HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES P. SUBJACK, DISTRICT ATTORNEY, MAYVILLE (TRACEY A. BRUNECZ OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, SCUDDER, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, burglary in the second degree (Penal Law § 140.25). Defendant contends that County Court erred in advising him at the time of sentencing that it was unable to keep its sentence commitment of a term of imprisonment of five years and in sentencing him to a term of imprisonment of eight years when he declined the court's offer to withdraw the plea. We reject that contention. The court advised defendant at sentencing that it was unable to keep its commitment in light of the information it obtained through the victim impact statement of defendant's cousin, whose home defendant had burglarized, and the remarks made at sentencing by the husband of defendant's cousin ( see People v. Wood, 207 A.D.2d 1001; see also People v. Arroyo, 284 A.D.2d 735, 736, lv denied 96 N.Y.2d 916). Contrary to the contention of defendant, the fact that he pleaded guilty in Erie County to unrelated charges did not place him in a "`no return' position" with respect to the plea herein ( People v. Danny G., 61 N.Y.2d 169, 175). The plea herein was not conditioned upon the proceedings in Erie County, nor did defendant perform any services for the prosecution in exchange for his plea. Thus, defendant would have been returned to his preplea status had he elected to withdraw his plea ( cf. id. at 176; People v. Harris, 239 A.D.2d 944). The sentence is neither unduly harsh nor severe.