People v. Cuti

176 A.D.2d 410, 574 N.Y.S.2d 230, 1991 N.Y. App. Div. LEXIS 12040

Opinion

— Appeal from a judgment of the County Court of Greene County (Battisti Jr., J.), rendered June 26, 1990, which resentenced defendant following his conviction of the crime of criminal sale of a controlled substance in the third degree.

Defendant claims that County Court improperly denied his motion for a hearing to determine whether he had provided the "material assistance” required under Penal Law § 65.00 (1) (b) to qualify for lifetime probation. At the time of defendant’s plea, the People indicated that they would recommend a prison sentence of 4 Vi to 9 years with a "possibility” of lifetime probation if defendant cooperated with the authorities; at defendant’s sentencing the People stated that defendant had not provided such assistance to the authorities. No promises were made for such a recommendation (see, People v Lofton, 58 AD2d 610) and, in the absence of consent or a recommendation by the People to a sentence of lifetime probation as required by statute, the court lacked the authority to impose such a sentence (see, People v Smith, 154 AD2d 934, lv denied 75 NY2d 776; People v Edwards, 148 AD2d 923, lv denied 74 NY2d 794). Accordingly, the prison sentence of 4 Vi to 9 years imposed pursuant to the plea bargain should be affirmed (see, People v Loebl, 77 AD2d 949).

Weiss, J. P., Mikoll, Yesawich Jr., Levine and Crew III, JJ., concur. Ordered that the judgment is affirmed.