Opinion
2012-02-9
The PEOPLE of the State of New York, Respondent, v. James J. MATTUCCI, Appellant.
Kevin J. Bauer, Albany, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Kevin M. O'Shea of counsel), for respondent.
Kevin J. Bauer, Albany, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Kevin M. O'Shea of counsel), for respondent.
Before: ROSE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.
ROSE, J.P.
Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered August 23, 2010, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.
Defendant pleaded guilty to burglary in the second degree in full satisfaction of a six-count indictment with the understanding that County Court would sentence him to the minimum available sentence of 3 1/2 years in prison, to be followed by three years of postrelease supervision ( see Penal Law § 70.02). Following a review of the presentence investigation report, County Court informed defendant that it would not abide by the plea agreement and defendant was given an opportunity to withdraw his plea. After defendant rejected the offer to withdraw his plea, County Court sentenced defendant to 5 1/2 years in prison, to be followed by three years of postrelease supervision. Defendant now appeals and we affirm.
We reject defendant's contention that County Court erred by failing to abide by the terms of the plea agreement. “A trial court retains discretion in fixing an appropriate sentence up until the time of sentencing” ( People v. Yanus, 13 A.D.3d 804, 805, 786 N.Y.S.2d 264 [2004] [citations omitted]; see People v. Brunelle, 47 A.D.3d 1067, 1067, 850 N.Y.S.2d 668 [2008], lv. denied 11 N.Y.3d 786, 866 N.Y.S.2d 612, 896 N.E.2d 98 [2008] ). Moreover, “a sentencing promise made in conjunction with a plea is conditioned upon ‘its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources' ” ( People v. Hicks, 98 N.Y.2d 185, 188, 746 N.Y.S.2d 441, 774 N.E.2d 205 [2002], quoting People v. Selikoff, 35 N.Y.2d 227, 238, 360 N.Y.S.2d 623, 318 N.E.2d 784 [1974], cert. denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 [1975]; accord People v. Haslow, 20 A.D.3d 680, 681, 797 N.Y.S.2d 784 [2005], lv. denied 5 N.Y.3d 828, 804 N.Y.S.2d 43, 837 N.E.2d 742 [2005] ). Finally, “[w]here a court determines that the negotiated sentence is not appropriate , it may impose an enhanced sentence if it first offers the defendant the opportunity to withdraw his or her plea” ( People v. Sanchez, 87 A.D.3d 1226, 1226, 930 N.Y.S.2d 86 [2011]; see People v. Haslow, 20 A.D.3d at 681, 797 N.Y.S.2d 784).
Here, County Court concluded that the negotiated sentence was inappropriate based upon information in the presentence report, including the circumstances surrounding an unrelated offense upon which defendant was then being held, the victim impact statements, defendant's criminal record and the fact that defendant was uncooperative in the preparation of the report. County Court then properly provided defendant with an opportunity to withdraw his plea, which defendant rejected. Accordingly, we find no abuse of discretion in the imposition of an enhanced sentence ( see People v. Wilson, 69 A.D.3d 970, 971, 892 N.Y.S.2d 627 [2010]; People v. Rubendall, 4 A.D.3d 13, 19–20, 772 N.Y.S.2d 346 [2004] ).
ORDERED that the judgment is affirmed.