People v. Miller

234 A.D.2d 804, 652 N.Y.S.2d 112, 1996 N.Y. App. Div. LEXIS 12596

Opinion

—Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered October 13, 1995, convicting defendant upon his plea of guilty of the crime of operating a motor vehicle while under the influence of alcohol.

Defendant pleaded guilty to operating a motor vehicle while under the influence of alcohol, a felony, in satisfaction of an indictment charging two counts of operating a motor vehicle while under the influence of alcohol as well as an outstanding ticket. As part of the plea agreement, the People agreed to recommend a sentence of five years’ probation, revocation of defendant’s driving privileges and the imposition of a fine, and also reserved the right to request a six-month jail term depending on the contents of the presentence report.

While awaiting sentencing, defendant was arrested for and pleaded guilty to aggravated unlicensed operation of a motor vehicle. In light of these interim events, County Court refused to accede to the agreed-upon sentence. Although the court afforded defendant the opportunity to withdraw his guilty plea, defendant declined to do so. Defendant was then sentenced to a prison term of 1 to 4 years, his driving privileges were revoked and a fine imposed.

Defendant’s sole contention on appeal is that this sentence is harsh and excessive. Specifically, defendant argues that a six-month jail term and five years’ probation is a more appropriate sentence. Upon our review of the record, we disagree. In light of defendant’s prior driving while intoxicated conviction and, in particular, his interim aggravated unlicensed operation of a motor vehicle conviction, we cannot conclude that a reduction of the sentence is warranted in the interest of justice (see, CPL 470.15 [6] [b]; People v Mackey, 136 AD2d 780, 781, lv denied 71 NY2d 899).

Mikoll, J. P., Casey, Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed.