| People v Mattucci |
| 2012 NY Slip Op 00863 [92 AD3d 1029] |
| February 9, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James J.Mattucci, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Kevin M. O'Shea of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Chemung County (Buckley, J.),rendered August 23, 2010, convicting defendant upon his plea of guilty of the crime of burglaryin the second degree.
Defendant pleaded guilty to burglary in the second degree in full satisfaction of a six-countindictment with the understanding that County Court would sentence him to the minimumavailable sentence of 3½ years in prison, to be followed by three years of postreleasesupervision (see Penal Law § 70.02). Following a review of the presentenceinvestigation report, County Court informed defendant that it would not abide by the pleaagreement and defendant was given an opportunity to withdraw his plea. After defendant rejectedthe offer to withdraw his plea, County Court sentenced defendant to 5½ years in prison, tobe followed by three years of postrelease supervision. Defendant now appeals and we affirm.
We reject defendant's contention that County Court erred by failing to abide by the terms ofthe plea agreement. "A trial court retains discretion in fixing an appropriate sentence up until thetime of sentencing" (People vYanus, 13 AD3d 804, 805 [2004] [citations omitted]; see People v Brunelle, 47 AD3d1067, 1067 [2008], lv denied 11 NY3d 786 [2008]). Moreover, "a sentencingpromise made in conjunction with a plea is conditioned upon 'its being lawful and [*2]appropriate in light of the subsequent presentence report orinformation obtained from other reliable sources' " (People v Hicks, 98 NY2d 185, 188[2002], quoting People v Selikoff, 35 NY2d 227, 238 [1974], cert denied 419 US1122 [1975]; accord People vHaslow, 20 AD3d 680, 681 [2005], lv denied 5 NY3d 828 [2005]). Finally,"[w]here a court determines that the negotiated sentence is not appropriate, it may impose anenhanced sentence if it first offers the defendant the opportunity to withdraw his or her plea" (People v Sanchez, 87 AD3d 1226,1226 [2011]; see People v Haslow, 20 AD3d at 681).
Here, County Court concluded that the negotiated sentence was inappropriate based uponinformation in the presentence report, including the circumstances surrounding an unrelatedoffense upon which defendant was then being held, the victim impact statements, defendant'scriminal record and the fact that defendant was uncooperative in the preparation of the report.County Court then properly provided defendant with an opportunity to withdraw his plea, whichdefendant rejected. Accordingly, we find no abuse of discretion in the imposition of an enhancedsentence (see People v Wilson, 69AD3d 970, 971 [2010]; People vRubendall, 4 AD3d 13, 19-20 [2004]).
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.