People v. Acosta

187 A.D.2d 329, 590 N.Y.S.2d 77, 1992 N.Y. App. Div. LEXIS 13068

Opinion

Judgment, Supreme Court, New York County (Herbert Adlerberg, J.), rendered March 8, 1991, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 2 Vx to 5 years, unanimously affirmed.

Although the court, in promising defendant a sentence of 2Vx to 5 years, stated that it would recommend to the Parole Board that the term run concurrently to any unserved time owed to the Parole Board, such recommendation was not binding on the Parole Board (see, People ex rel. Coleman v Smith, 75 AD2d 706) and indeed defendant was so advised by the court. By law, the sentence had to run consecutively to defendant’s undischarged sentence (Penal Law § 70.25 [2-a]), and thus, the Parole Board was without discretion to run the sentences concurrently. Defendant’s claim that he was not given his promised sentence is to be tested against an objective reading of the bargain and not against his subjective interpretation thereof (People v Guerra, 157 AD2d 500). Concur—Sullivan, J. P., Wallach, Kupferman and Ross, JJ.