Opinion
May 25, 1995
Appeal from the County Court of Franklin County (Main, Jr., J.).
On this appeal, defendant contends that he should be allowed to withdraw his plea of guilty because County Court failed to keep its promise that it would not impose a prison sentence harsher than 1 to 3 years. The court imposed a prison sentence of 1 1/3 to 4 years. In rejecting defendant's argument, we note that the promise that defendant claims was made appears nowhere in the minutes of the plea allocution (see, People v Frederick, 45 N.Y.2d 520; People v Hernandez (Mosquea), 207 A.D.2d 1015, lv denied 84 N.Y.2d 936, 938; cf., People v Torres, 45 N.Y.2d 751).
Even if we accepted defendant's contention that a prior letter from County Court indicated that an agreement had been reached with respect to a 1- to 3-year sentence, "there is no basis for judicial recognition of a plea bargain until it is concluded by entry on the record" (People v Hood, 62 N.Y.2d 863, 865). The plea minutes are devoid of any mention of any final agreement regarding a sentencing recommendation (see, People v Piccolo, 56 A.D.2d 804). Instead, defendant clearly and unequivocally acknowledged during the plea allocution that no promise was being made concerning his sentence and that he could receive the sentence which County Court did ultimately impose (see, People v Vulpis, 159 A.D.2d 530; People v Osborne, 133 A.D.2d 855, lv denied 70 N.Y.2d 959; People v Miner, 126 A.D.2d 798; see also, People v Salvagni, 199 A.D.2d 680). Both defendant and his counsel acknowledged that, aside from the fact that defendant was being allowed to plead guilty to a single count of a multicount indictment and that the People were recommending a split sentence of probation and local incarceration, neither County Court nor anyone else had made any promises concerning his sentence and there were no other conditions to the plea (see, People v Frederick, supra; People v Salvagni, supra; see also, People v Selikoff, 35 N.Y.2d 227, cert denied 419 U.S. 1122). Under the circumstances, any prior promises which may have been made are not entitled to judicial recognition.
We further reject defendant's contention that the sentence imposed was unduly harsh and excessive. County Court properly exercised its discretion in light of the nature of defendant's actions and the fact that defendant was permitted to plead guilty to only one count of a 14-count indictment (see, People v Jefferson, 161 A.D.2d 898, lv denied 76 N.Y.2d 790). Defendant has asserted no circumstances which would warrant a reduction of the sentence.
Mercure, White, Casey and Spain, JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the County Court of Franklin County for further proceedings pursuant to CPL 460.50 (5).