State of New York Supreme Court, Appellate Division Third Judicial Department
February 9, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JAMES J. MATTUCCI, APPELLANT.
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 burglary in the second degree.
The opinion of the court was delivered by: Rose, J.P.
MEMORANDUM AND ORDER
Calendar Date: January 9, 2012
Before: Rose, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.
Defendant pleaded guilty to burglary in the second degree in full satisfaction of a six-count indictment with the understanding that County Court would sentence him to the minimum available sentence of 31/2 years in prison, to be followed by three years of postrelease supervision (see Penal Law § 70.02). Following a review of the presentence investigation report, County Court informed defendant that it would not abide by the plea agreement and defendant was given an opportunity to withdraw his plea. After defendant rejected the offer to withdraw his plea, County Court sentenced defendant to 51/2 years in prison, to be 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 of the plea agreement. "A trial court retains discretion in fixing an appropriate sentence up until the time of sentencing" (People v Yanus, 13 AD3d 804, 805  [citations omitted]; see People v Brunelle, 47 AD3d 1067, 1067 , lv denied 11 NY3d 786 ). Moreover, "a sentencing promise made in conjunction with a plea is conditioned upon 'its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources'" (People v Hicks, 98 NY2d 185, 188 , quoting People v Selikoff, 35 NY2d 227, 238 , cert denied 419 US 1122 ; accord People v Haslow, 20 AD3d 680, 681 , lv denied 5 NY3d 828 ). Finally, "[w]here a court determines that the negotiated sentence is not appropriate, it may impose an enhanced sentence if it first offers the defendant the opportunity to withdraw his or her plea" (People v Sanchez, 87 AD3d 1226, 1226 ; see People v Haslow, 20 AD3d at 681).
Here, County Court concluded that the negotiated sentence was inappropriate based upon information in the presentence report, including the circumstances surrounding an unrelated offense upon which defendant was then being held, the victim impact statements, defendant's criminal 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, which defendant rejected. Accordingly, we find no abuse of discretion in the imposition of an enhanced sentence (see People v Wilson, 69 AD3d 970, 971 ; People v Rubendell, 4 AD3d 13, 19-20 ).
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed.
Robert D. Mayberger Clerk of the Court
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