PEOPLE v. MATTHEWS (1998)

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

PEOPLE of the State of New York, Respondent, v. Tyrone MATTHEWS, Appellant.

Decided: April 29, 1998

Before GREEN, J.P., and LAWTON, HAYES, PIGOTT and BALIO, JJ.

Norman Chirco, Auburn, for Appellant. James B. Vargason by Christopher Vozzo, Auburn, for Respondent.

At the time defendant entered his plea of guilty to criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31), the People agreed to recommend that he be sentenced to shock probation. After reviewing the presentence report, however, the District Attorney declined to make such a recommendation. Defendant rejected County Court's offer to allow him to withdraw his plea and proceed on the original charge, even after being advised that the court was inclined to impose an indeterminate term of incarceration of 21/313 to 7 years. Defendant did not request an adjournment to consider the court's offer and thus has failed to preserve for our review his present contention that the court erred in failing to adjourn the matter for that purpose (see, CPL 470.05[2] ). The court did not abuse its discretion in imposing the maximum possible sentence, which is not unduly harsh or severe.

Judgment unanimously affirmed.

MEMORANDUM:

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