| People v Clapper |
| 2011 NY Slip Op 06604 [87 AD3d 1227] |
| September 29, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ronald C.Clapper, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Christopher D. Grace of counsel), forrespondent.
Appeal from a judgment of the County Court of Broome County (Cawley, J.), renderedFebruary 17, 2010, convicting defendant upon his plea of guilty of the crime of criminal sale of acontrolled substance in the fifth degree (two counts).
Defendant waived indictment and pleaded guilty to two counts of criminal sale of acontrolled substance in the fifth degree as charged in a superior court information. Under theterms of the plea agreement, defendant was to be sentenced to time served on one of the countsand five years of probation on the other. County Court, however, warned defendant that if he wasarrested between the time of the plea and sentencing, it would not be bound by the agreement andcould sentence him to up to four years on each count, to run consecutively. Defendant wasarrested for petit larceny prior to sentencing and admitted that there was a reasonable basis for hisarrest at a subsequent hearing. Consequently, County Court sentenced him to consecutive termsof imprisonment of three years on each count, to be followed by two years of postreleasesupervision. Defendant appeals.
Defendant urges this Court to modify his sentence in the interest of justice. We decline to doso in view of the circumstances. It is undisputed that defendant failed to comply with the terms ofthe plea agreement by getting arrested for petit larceny prior to sentencing. County Courtconducted an appropriate inquiry and determined that there was a reasonable basis fordefendant's arrest (see People v Outley, 80 NY2d 702, 713 [1993]; People v Jenkins, 40 AD3d 1308[2007], lv denied 9 NY3d 991 [2007]; compare People v Davis, 62 AD3d 1266, 1267[*2][2009]). Consequently, County Court was not obligated to adhere tothe original sentence. Contrary to defendant's claim, the record discloses that County Court basedthe new sentence on defendant's postplea arrest, not his misdeeds while a confidential informant.In view of defendant's considerable criminal record and status as a second felony offender, wefind no extraordinary circumstances nor any abuse of discretion warranting a reduction of thesentence in the interest of justice (seegenerally People v Rose, 79 AD3d 1365, 1367 [2010]; People v Dilone, 261AD2d 650 [1999], lv denied 93 NY2d 969 [1999]).
Peters, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that thejudgment is affirmed.