Opinion
April 29, 1998
Appeal from Judgment of Wayne County Court, Kehoe, J. — Criminal Sale Controlled Substance, 3rd Degree.
Present — Lawton, J.P., Hayes, Callahan, Balio and Boehm, JJ.
Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: We reject the contention of defendant that County Court erred in refusing to accept his guilty plea. Where, as here, the plea is to less than the entire indictment, the decision whether to accept the plea "is left entirely to the discretion of the People, subject to [the court's] consent" (People v. Haas, 245 A.D.2d 825, 826; see, People v. Miller, 126 A.D.2d 868, 869, lv denied 69 N.Y.2d 884). Further, because defendant's factual allocution raised an agency defense, the court properly conducted further inquiry (see, People v. Lopez, 71 N.Y.2d 662, 665-666; People v. Mosher, 222 A.D.2d 1034) and, upon such inquiry, granted the prosecutor's request to reject the plea.
We reject the further contention of defendant that he was deprived of effective assistance of counsel; "the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation," establish that defendant received meaningful representation (People v. Baldi, 54 N.Y.2d 137, 147; see, People v. Flores, 84 N.Y.2d 184, 186-187).
We reject defendant's contention that the sentence is illegal. "The imposition of a more severe sentence after trial than that offered to defendant pursuant to a plea offer that he rejected, without more, does not support the contention of defendant that he was penalized for exercising his right to go to trial" (People v. Jones, 229 A.D.2d 980, lv denied 89 N.Y.2d 925; see, People v. Pena, 50 N.Y.2d 400, 411-412, rearg denied 51 N.Y.2d 770, cert denied 449 U.S. 1087; People v. Reed, 222 A.D.2d 616, lv denied 87 N.Y.2d 1024). However, we modify the judgment as a matter of discretion in the interest of justice by reducing the sentences imposed for two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree to indeterminate terms of incarceration of 7 to 14 years.