Opinion
February 16, 2000
Appeal from Judgment of Monroe County Court, Bristol, J. — Criminal Sale Controlled Substance, 2nd Degree.
PRESENT: GREEN, A. P. J., PINE, PIGOTT, JR., AND SCUDDER, JJ.
Judgment unanimously modified as a matter of discretion in the interest of justice and as affirmed in accordance with the following Memorandum:
On appeal from a judgment convicting defendant upon his plea criminal sale of a controlled substance in the second degree (Penal Law § 220.41), he contends that County Court improperly imposed an enhanced sentence without affording him an opportunity to withdraw his plea. When a defendant violates a condition of the plea agreement, the court is no longer bound by the agreement and is free to impose a greater sentence without offering defendant an opportunity to withdraw his plea ( see, People v. Marshall, 231 A.D.2d 893, 894, lv denied 89 N.Y.2d 866; see also, People v. Cato, 226 A.D.2d 1066, lv denied 88 N.Y.2d 877). The court determined that defendant had violated the condition of the agreement that defendant answer truthfully all questions put to him by the court and probation officer. Defendant told the probation officer that he thought his sentence was harsh and unfair after stating during his plea colloquy that he thought his promised sentence was fair and a "good deal". Even assuming, arguendo, that this discrepancy empowered the court to enhance the sentence, we reduce the sentence as a matter of discretion in the interest of justice to the agreed upon sentence of an indeterminate term of incarceration of 6 years to life.
We reject the contention of defendant that the court improperly adjudicated him a second felony offender without affording him a hearing. Defense counsel was specifically asked if he had any objection to the procedure used and he indicated that he had none. Defendant has thus waived any objection to the procedure used by the court ( see generally, People v. Lasage, 221 A.D.2d 1006, lv denied 88 N.Y.2d 849). In any event, there was substantial compliance with the procedural requirements of CPL 400.21 ( see, People v. Polanco, 232 A.D.2d 674, 675; see also, People v. Alston, 83 A.D.2d 744, 745).