People v. Coutts

Appellate Division of the Supreme Court of New York

People v. Coutts

277 A.D.2d 1029, 715 N.Y.S.2d 350, 2000 N.Y. App. Div. LEXIS 11509

Appellate Division of the Supreme Court of the State of New York·Decided November 13, 2000·Published·Cited by 4 cases

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant contends that County Court erred in failing to afford him an opportunity to withdraw his plea before imposing a greater sentence than agreed to at the time of the plea. Before sentencing the court learned that defendant was a second felony offender, so the promised sentence of 2 to 4 years’ incarceration was not permitted for assault in the second degree, a class D violent felony. The court sentenced defendant to a determinate term of three years on each assault count, the minimum sentence for a second felony offense that is a class D violent felony offense (see, Penal Law § 70.06 [6] [c]). Defendant’s contention is not preserved for our review and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]; People v Luksch, 265 AD2d 895, lv denied 94 NY2d 825). (Appeal from Judgment of Cayuga County Court, Contiguglia, J. — Assault, 2nd Degree.) Present — Pine, J. P., Hayes, Wisner, Kehoe and Lawton, JJ.

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—Judgment unanimously affirmed. Memorandum: Defendant contends that County Court erred in failing to afford him an opportunity to withdraw his plea before imposing a greater sentence than agreed to at the time of the plea. Before sentencing the court learned that defendant was a second felony offender, so the promised sentence of 2 to 4 years’ incarceration was not permitted for assault in the second degree, a class D violent felony. The court sentenced defendant to a determinate term of three years on each assault count, the minimum sentence for a second felony offense that is a class D violent felony offense (see, Penal Law § 70.06 [6] [c]). Defendant’s contention is not preserved for our review and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]; People v Luksch, 265 AD2d 895, lv denied 94 NY2d 825). (Appeal from Judgment of Cayuga County Court, Contiguglia, J. — Assault, 2nd Degree.) Present — Pine, J. P., Hayes, Wisner, Kehoe and Lawton, JJ.

People v. Coutts, 277 A.D.2d 1029, 715 N.Y.S.2d 350, 2000 N.Y. App. Div. LEXIS 11509 (N.Y. Ct. App. 2000).

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