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People v. McEachern

State of New York Supreme Court, Appellate Division Third Judicial Department


December 17, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
SAMUEL V. MCEACHERN, APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: November 4, 2009

Before: Mercure, J.P., Rose, Kane, Stein and Garry, JJ.

Appeal from a judgment of the County Court of Greene County (Lalor, J.), rendered October 14, 2008, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.

While on parole, defendant was charged in an indictment with two counts of driving while intoxicated as a felony. Due to the fact that defendant was cooperating with a police investigation, the prosecution recommended a plea offer under which defendant would plead guilty to one count of the indictment, waive his right to appeal and receive a sentence of six months in jail. County Court indicated that it would take into account the prosecution's recommendation, but did not commit to any particular sentence. Defendant then pleaded guilty to one count of driving while intoxicated as a felony, waived his right to appeal and was to be sentenced at a later date. Prior to sentencing, defendant was arrested for assault and the matter was set down for an enhancement hearing, which defendant later waived. In accordance with the prosecution's revised recommendation, County Court sentenced defendant to 1 to 3 years in prison, to run concurrently with any sentence imposed upon his parole violation. Defendant now appeals.

Defendant contends that County Court improperly enhanced his sentence without affording him an opportunity to withdraw his guilty plea. Defendant, however, has not preserved this claim for our review due to his failure to object to the sentence or make a motion to withdraw his guilty plea before County Court (see People v Leonard, 306 AD2d 940 [2003]; People v Webb, 299 AD2d 955, 955 [2002], lv denied 99 NY2d 565 [2002]).

Mercure, J.P., Rose, Kane, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

20091217

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