People v. Burns

279 A.D.2d 586, 719 N.Y.S.2d 667, 2001 N.Y. App. Div. LEXIS 589

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 2001
• Status: Published

Opinion

Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (Spinner, J.), imposed August 20, 1999, upon his conviction of sexual abuse in the first degree and rape in the third degree, upon his plea of guilty, the sentence being concurrent indeterminate terms of 3V2 to 7 years imprisonment and lVs to 4 years imprisonment, respectively.

Ordered that the sentencé is modified, on the law, by reducing the term of imprisonment imposed on the defendant’s conviction of sexual abuse in the first degree from 3V2 to 7 years imprisonment to 3 to 6 years imprisonment; as so modified, the sentence is affirmed.

The court was not authorized to unilaterally impose an enhanced sentence based upon its conclusion that in protesting his innocence during a pre-sentence interview, the defendant violated a condition of his plea of guilty that he would fully cooperate with the probation department (see, People v Parker, 271 AD2d 63; People v Gerena, 219 AD2d 734; People v Stennett, 207 AD2d 847; People v Raffaele, 199 AD2d 545; People v Carr, 135 AD2d 722; People v Daniels, 132 AD2d 667; People v Brunson, 131 AD2d 689; People v Nunez, 248 AD2d 561). Accordingly, the sentence is modified by reducing the term of imprisonment imposed on the conviction of sexual abuse in the first degree to the term originally promised in the plea agreement. Bracken, Acting P. J., S. Miller, Florio and Luciano, JJ., concur.