| People v Collier |
| 2012 NY Slip Op 00058 [91 AD3d 987] |
| Jnury 5, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AndreCollier, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered January 13, 2011, which resentenced defendant following his conviction of the crime ofrobbery in the first degree (two counts).
Defendant pleaded guilty to two counts of robbery in the first degree in satisfaction of afive-count indictment and various unindicted crimes. Under the terms of the plea agreement, hewas to be sentenced as a second felony offender to 25 years in prison on the first count and fiveyears in prison on the fifth count, which terms were to be followed by five years of postreleasesupervision. County Court retained the discretion to direct that such terms run either concurrentlyor consecutively depending on the information contained in the presentence investigation report.Thereafter, County Court sentenced defendant as agreed to consecutive terms of imprisonment.This Court subsequently ruled that defendant's sentence on the fifth count was illegal andremitted the matter to County Court "to either resentence defendant in the manner that ensuresthat he receives the benefit of his bargain or permit both parties the opportunity to withdraw fromthe plea agreement" (79 AD3d 1162, 1163 [2010]). At resentencing, defendant made a request towithdraw his plea. County Court denied the request and proceeded to resentence defendant toconcurrent prison terms of 25 years on the first count and 10 years on the fifth count, whichterms were to be followed by five years of postrelease supervision. Defendant now appeals.[*2]
Defendant contends that County Court erroneouslyrefused his request to withdraw his guilty plea and resentenced him to a greater term ofimprisonment than that agreed to under the plea agreement thereby rendering the pleainvoluntary. He bases this argument on the fact that County Court resentenced him to 10 years inprison on the fifth count, which was greater than the five-year term agreed to in the pleaagreement. In fact, defendant actually received a lesser sentence under the resentence than theone he agreed to under the plea agreement because County Court directed that the sentences runconcurrently, instead of consecutively, thereby reducing his aggregate prison exposure from 30 to25 years. Thus, defendant received a sentence that was better than "the benefit of his bargain"upon resentencing, and County Court was not required to allow him to withdraw his plea (seegenerally People v Sheils, 288 AD2d 504, 505 [2001], lv denied 97 NY2d 733[2002]; compare People v Martin, 278 AD2d 743, 744 [2000]; People v Sellers,222 AD2d 941 [1995]). Although defendant contends that the resentence would expose him to alonger sentence if his conviction of the first count of the indictment—for which hereceived 25 years in prison—were reversed, that possibility is precluded by the fact that hisconviction was affirmed on direct appeal (52 AD3d 1121 [2008], lv denied 11 NY3d 786[2008]) and his CPL article 440 motion was already addressed in the appeal wherein this Courtvacated his sentence on the fifth count, but left the sentence imposed on the first countundisturbed (79 AD3d 1162 [2010]). Contrary to defendant's claim, People v Rowland (8 NY3d 342[2007]) is factually distinguishable as it involved the reversal of a preexisting conviction and,therefore, does not require a different result.
Peters, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.