Opinion
May 26, 1981
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 26, 1978, convicting him of robbery in the second degree, upon his guilty plea, and imposing a sentence of from 2 1/3 to 7 years in prison. Judgment affirmed. Defendant's contention that error occurred in the denial of his motion to suppress an inculpatory statement because he had not voluntarily waived his right to remain silent is without merit. The issue, as it was presented in this case, was one of credibility for the hearing court's evaluation and determination; our review of the record discloses no basis upon which to find that the court's ruling was incorrect in light of the testimony given. Although defendant was sentenced pursuant to the prescription for a "C" felony, upon the court's determination that it could not adhere to a previous promise of no more than "E" felony time, we find no error. People v Selikoff ( 35 N.Y.2d 227), upon which defendant relies, requires only that a defendant be afforded an opportunity to withdraw his guilty plea when a sentence promised as a result of a negotiated plea cannot legally be imposed. Defendant was afforded but declined that opportunity, and the sentence actually imposed, evaluated in light of that permitted, may hardly be challenged as an abuse of discretion (People v Caputo, 13 A.D.2d 861). Titone, J.P., Gulotta, Cohalan and O'Connor, JJ., concur.