| People v Lopez |
| 2008 NY Slip Op 04396 [51 AD3d 1210] |
| May 15, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gregory M.Lopez Jr., Appellant. |
—[*1] Julie A. Garcia, District Attorney, Elizabethtown, for respondent.
Mercure, J.P. Appeal from a judgment of the County Court of Essex County (Halloran, J.),rendered September 20, 2005, convicting defendant upon his plea of guilty of the crime ofcriminal possession of marihuana in the second degree.
Defendant was arrested after a search of his vehicle at a United States Border Patrolcheckpoint uncovered 100 pounds of marihuana. Defendant subsequently waived indictment andagreed to be prosecuted by a superior court information charging him with criminal possession ofmarihuana in the second degree. Thereafter, defendant pleaded guilty to the crime charged inexchange for the People's promise to recommend a term of imprisonment of two years. Prior toaccepting his plea, County Court advised defendant that a period of postrelease supervision ofone to two years would be imposed and that no promises or commitments were otherwise beingmade regarding sentencing. Subsequently, although the People recommended a two-year prisonterm, County Court sentenced defendant as a second felony offender to a prison term of fouryears with two years of postrelease supervision. Defendant now appeals.
Defendant contends that he should be allowed to withdraw his plea based on his sentenceexceeding the term the People agreed to recommend pursuant to the plea agreement. Whiledefendant did move to vacate his sentence pursuant to CPL 440.20, his failure to make a motionto withdraw his plea or vacate the judgment renders this issue unpreserved for review (seePeople v McCann, 303 AD2d 780, 781 [2003], lv denied 100 NY2d 584 [2003];People v Hartford, 217 AD2d 798, 800 [1995]). Moreover, reversal in the interest ofjustice is unwarranted. While a defendant must be afforded the opportunity to withdraw his orher plea when the plea was induced by a court's sentencing promise and the court subsequentlyfinds that sentence to be inappropriate (see People v McConnell, 49 NY2d 340, 346[1980]; People v Martin, 17 AD3d775, 776 [2005]), County Court explicitly informed defendant during the plea allocution thatthere were no promises being made regarding his sentence and advised him of the potentialmaximum sentence that he faced, which he indicated that he understood. Absent a commitmentby the court to sentence defendant pursuant to the People's recommendation, the imposition of aharsher sentence did not entitle him to withdraw his plea (see People v Bunce, 45 AD3d 982, 984 [2007]; People v McKenzie, 28 AD3d942, 943 [2006], lv denied 7 NY3d 759 [2006]; People v Hartford, 217AD2d at 799-800). Finally, while we agree with the People that County Court's remarksregarding the "Indian Nation" were "intemperate" and would have been better left unsaid, thesentence imposed was not harsh and excessive given the enormous amount of contrabandinvolved herein.
Peters, Carpinello, Rose and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.