| People v Westerling |
| 2015 NY Slip Op 04170 [128 AD3d 1178] |
| May 14, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Karel R. Westerling, Jr., Appellant. |
Paul R. Corradini, Elmira, for appellant.
Gwen Wilkinson, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Appeals (1) from a judgment of the County Court of Tompkins County (Rowley, J.),rendered January 16, 2013, which revoked defendant's probation and imposed a sentenceof imprisonment, and (2) by permission, from an order of said court, entered September4, 2013, which denied defendant's motion pursuant to CPL 440.20 to set aside thesentence, without a hearing.
Defendant waived indictment and was charged in a superior court information with anumber of theft-related crimes. He pleaded guilty to grand larceny in the third degree insatisfaction of all pending charges. Under the terms of the plea agreement, defendant wasto be sentenced to six months in jail as well as five years of probation, which was toinclude his participation in a felony drug treatment program. County Court adviseddefendant that, in the event that he did not successfully complete the program, it couldimpose any legal sentence on the underlying crime. After serving his jail time and beingreleased to probation, defendant failed to successfully complete the program. As a result,his probation was revoked and he was resentenced to 1 to 5 years in prison. Defendantmoved pursuant to CPL 440.20 to set aside the sentence and his motion was denied. Henow appeals from both the judgment of conviction and, by permission, from the orderdenying his CPL 440.20 motion.
Defendant contends that his sentence should be set aside because County Court didnot comply with the terms of the plea agreement upon resentencing. In particular, hemaintains that the court promised to resentence him to a prison term of 1 to 3 years or 1to 4 years, but instead resentenced him to 1 to 5 years. Upon reviewing the record, it isapparent that defendant's assertion is based upon comments made by County Court thathave been completely taken out of [*2]context. Indiscussing the possible consequences of defendant's failure to successfully complete thefelony drug treatment program, the court noted that defendant would face resentencingand could receive the maximum of 2
Peters, P.J., McCarthy, Lynch and Devine, JJ., concur. Ordered that the judgmentand order are affirmed.