People v. Marquez

250 A.D.2d 398, 672 N.Y.S.2d 692, 1998 N.Y. App. Div. LEXIS 5306

Opinion

—Judgments, Supreme Court, New York County (Franklin Weissberg, J.), rendered April 15, 1997, convicting defendant, upon his pleas of guilty, of attempted enterprise corruption and promoting gambling in the first degree, and sentencing him to a term of 5 years probation and a 3-year period of conditional discharge, unanimously affirmed.

Defendant’s motion to withdraw his pleas was properly denied. The original sentence agreement provided for 5 years probation, the first 90 days to be served in jail. Although that sentence would have been illegal, the court took proper curative action by eliminating the 90-day jail term and thereafter imposing a lawful sentence of probation only (see, Matter of Kisloff v Covington, 73 NY2d 445; People v Monereau, 181 AD2d 918, lv denied 79 NY2d 1052). Since the sentence was no more severe, and indeed was clearly less harsh, than that promised, defendant was not entitled to withdraw his pleas. The confusion, if any, over the original sentence cannot be said to have created such an ambiguity that the voluntariness of the pleas is called into doubt. Defendant’s remaining contentions are without merit. Concur — Rosenberger, J. P., Ellerin, Wallach, Williams and Saxe, JJ.