Opinion
December 29, 1978
Motion by appellant and cross motion by respondent to reargue the appeal from a sentence of the Supreme Court, Queens County, imposed June 16, 1978, which was decided by order of this court dated October 30, 1978. Motion and cross motion denied. On the court's own motion, the decision and order of this court, both dated October 30, 1978 [ 65 A.D.2d 28], are vacated and recalled, and the following substituted decision is rendered: Appeal by defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County, imposed June 16, 1978, upon his conviction of criminal sale of a controlled substance in the sixth degree and criminal possession of stolen property in the second degree, on a plea of guilty. Sentence affirmed. Subsequent to the initial determination of this appeal, the court was supplied with transcripts of judicial proceedings which occurred in the interim between plea and sentence. It is now evident that the defendant was advised that the promised sentence would not be imposed and that he was fully afforded the opportunity to withdraw his plea. After receiving two adjournments, the defendant finally advised the court that he did not wish to withdraw his plea. Neither party has explained why these extremely relevant transcripts were not part of the record on appeal. Nevertheless, it is apparent that the intended purpose of our remand, i.e., to afford the defendant the opportunity to withdraw his plea, has been fully satisfied. On the merits, there is no question that the sentence was well within the sentencing court's exercise of discretion and was properly imposed. Titone, J.P., Gulotta, Suozzi and Rabin, JJ., concur.