Opinion
June 16, 2000.
Appeal from Judgment of Erie County Court, DiTullio, J. — Felony Driving While Intoxicated.
PRESENT: PIGOTT, JR., P. J., GREEN, KEHOE AND LAWTON, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of felony driving while intoxicated (Vehicle and Traffic Law § 1192 Veh. Traf. [3]; § 1193 [1] [c]). His contention that the guilty plea was involuntary and should be vacated because County Court failed to sentence him in accordance with its prior commitment is without merit. The court promised to sentence defendant to incarceration on weekends if the presentence investigation report was favorable, but if the report was not favorable, it made no commitment regarding the sentence. Because the report was not favorable, the court was not bound by the conditional sentencing promise. The waiver by defendant of his right to appeal encompasses his contention that the sentence is unduly harsh and severe ( see, People v. Hidalgo, 91 N.Y.2d 733, 737; People v. Allen, 82 N.Y.2d 761, 762).