PEOPLE v. HOLBERT (2009)

 On appeal from a judgment convicting him, upon his plea of guilty, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), defendant contends that the sentence of a determinate term of incarceration of 15 years constitutes cruel and unusual punishment.   We reject that contention, inasmuch as it cannot be said that the sentence is “grossly disproportionate to the crime” (People v. Broadie, 37 N.Y.2d 100, 111, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287;  see generally People v. Thompson, 83 N.Y.2d 477, 484, 611 N.Y.S.2d 470, 633 N.E.2d 1074).   Also contrary to defendant's contention, the bargained-for sentence is not unduly harsh or severe.   Defendant failed to preserve for our review his further contention that the prosecutor's sentencing recommendation was “illusory” (see People v. Harris, 4 A.D.3d 770, 771 N.Y.S.2d 413, lv. denied 2 N.Y.3d 762, 778 N.Y.S.2d 781, 811 N.E.2d 43) and, in any event, defendant's contention is without merit.   The record establishes that the prosecutor complied with the plea agreement in recommending that defendant be sentenced to a determinate term of incarceration of 15 years (see People v. Hannig [appeal No. 1], 258 A.D.2d 908, 685 N.Y.S.2d 518, lv. denied 93 N.Y.2d 853, 688 N.Y.S.2d 501, 710 N.E.2d 1100).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: