Opinion
2000-10267, 2001-09658
Submitted October 9, 2003.
November 3, 2003.
Appeals by the defendant from (1) a judgment of the County Court, Suffolk County (Cacciabaudo, J.), rendered September 12, 2000, convicting him of the use of a child in a sexual performance and endangering the welfare of a child, upon his plea of guilty, and imposing sentence, and (2) a resentence of the same court imposed November 20, 2000.
Alan Polsky, Bohemia, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment and resentence are affirmed.
The defendant argues that his conviction must be reversed because his plea allocution to the crime of use of a child in a sexual performance was insufficient. The defendant did not move to withdraw the plea on this ground prior to the imposition of sentence or to vacate the judgment pursuant to CPL 440.10. Therefore, he has not preserved for appellate review the issue of the sufficiency of the plea allocution ( see People v. Mackey, 77 N.Y.2d 846; People v. Brown, 242 A.D.2d 337; People v. Moyd, 193 A.D.2d 763). In any event, the defendant's recital of the circumstances of the commission of the crime sufficiently established the elements of use of a child in a sexual performance ( see Penal Law § 263.05; People v. Horner, 300 A.D.2d 841; United States v. Dost, 636 F. Supp. 828, affd 813 F.2d 1231, cert denied 484 U.S. 856).
Furthermore, the County Court had the inherent power to resentence the defendant to correct the illegal sentence it had previously imposed ( see People v. DeValle, 94 N.Y.2d 870, 871-872). In view of the court's statement during the original sentencing that the defendant faced a minimum of 5 years and a maximum of 15 years, the defendant's resentence to 5 ½ to 11 years fell well within his bargained-for expectation ( see People v. Williams, 87 N.Y.2d 1014, 1015).
The defendant's remaining contentions are without merit.
ALTMAN, J.P., SMITH, FRIEDMANN and CRANE, JJ., concur.