People v. Rodriguez

74 A.D.3d 488, 901 N.Y.S.2d 839

Opinion

Judgment, Supreme Court, New York County (Micki A. Scherer, J.), rendered February 21, 2007, as amended April 13, 2007, convicting defendant, upon his plea of guilty, of attempted conspiracy in the second degree, and sentencing him, as a second felony offender, to a term of ¿Va to 9 years, unanimously affirmed.

The court resentenced defendant to an indeterminate term after discovering that the original sentence to a determinate term of five years was unlawful. Defendant failed to preserve his contention that the court erred in resentencing him without first offering him an opportunity to withdraw his guilty plea, since he did not object to the resentencing or move to withdraw his plea (see People v Berdecia, 223 AD2d 444 [1996], lv denied 88 NY2d 1019 [1996]). While the court addressed this issue in denying defendant’s CPL article 440 motion, that motion is not properly before this Court because defendant did not obtain leave to appeal (see CPL 450.15 [1]; People v Bailey, 275 AD2d 663 [2000], lv denied 95 NY2d 960 [2000]). We decline to review defendant’s claim in the interest of justice.

As the resentencing proceeding expressly incorporated the first allocution, defendant’s prior waiver of his right to appeal is enforceable, and it forecloses defendant’s present claim that the sentence was excessive (see People v Givens, 36 AD3d 454 [2007], lv denied 8 NY3d 922 [2007]). As an alternative holding, we perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Saxe, Nardelli, DeGrasse and Manzanet-Daniels, JJ.