PEOPLE v. CRUZ (1997)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Alex CRUZ, Defendant-Appellant.

Decided: March 27, 1997

Before MURPHY, P.J., and SULLIVAN, MILONAS and TOM, JJ.

Genevieve A. Felix, New York City, for Respondent. Kerry Elgarten, New York City, for Defendant-Appellant.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Elbert Hinkson, J.), rendered June 14, 1995, convicting defendant, upon his guilty plea, of criminal possession of a weapon in the third degree, and sentencing him to a term of 21/313 to 7 years, unanimously affirmed.

The court properly enhanced defendant's promised sentence where defendant violated the conditions of the plea. Defendant's current contention that, having never warned defendant of the possibility of an enhanced sentence, the court was obligated to offer him the opportunity to withdraw the plea, is unpreserved and without merit (People v. Berdecia, 223 A.D.2d 444, 637 N.Y.S.2d 48). Moreover, an enhanced sentence, with no option to withdraw the plea, was independently justified by the fact that defendant obtained a favorable plea bargain through the use of false pedigree information (see, People v. Costello, 231 A.D.2d 446, 647 N.Y.S.2d 207). We perceive no abuse of sentencing discretion.

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