People v. O'Donnell

113 A.D.2d 814, 493 N.Y.S.2d 377, 1985 N.Y. App. Div. LEXIS 52463

Opinion

Appeal by defendant, as limited by his motion, from a resentence of the Supreme Court, Suffolk County (Mclnerney, J.), imposed October 29, 1984, upon his conviction of grand larceny in the second degree, upon his plea of guilty, the resentence being an indeterminate term of imprisonment of from IV2 to 4Vi years.

Resentence reversed, on the law, and case remitted to the Supreme Court, Suffolk County, for resentencing in the light of People v Farrar (52 NY2d 302).

It is clear that the sentencing Judge did not exercise his discretion in resentencing the defendant but, rather, conformed to the terms set forth by the District Attorney as a condition for consenting to the acceptance of the plea. Thus, judicial discretion was never exercised (see, People v Farrar, supra).

We further find that this is not a case where the District Attorney has the right to make application to withdraw his consent to the plea. Such consent was not a necessary condition to the acceptance of the plea under the applicable statute (see, CPL 200.15, 220.10). Mollen, P. J., Mangano, Thompson and Kunzeman, JJ., concur.