PEOPLE v. BARZGE (1997)

Judgment, Supreme Court, Bronx County (Steven Barrett, J., at plea and sentence), rendered July 5, 1995, convicting defendant, upon his plea of guilty, of two counts of attempted criminal sale of a controlled substance in the third degree, and sentencing him as a second felony offender to concurrent indeterminate terms of imprisonment of 4 to 8 years, unanimously affirmed.

 Defendant seeks vacatur of his sentence and remand for resentencing on the ground that the sentencing court was under the erroneous impression that it lacked authority to impose a more lenient sentence than that agreed to on defendant's guilty plea.   While it is well settled that “a court must exercise its discretion at sentencing, notwithstanding that a sentence was negotiated at the time of the plea, and must be free to impose a lesser penalty if warranted ” [emphasis supplied] (People v. Farrar, 52 N.Y.2d 302, 308, 437 N.Y.S.2d 961, 419 N.E.2d 864), we have held that a trial court's erroneous belief that it lacks discretion at sentencing will only warrant vacatur of the sentence and remand for resentencing only where the record indicates possible harm flowing from the court's error, e.g., some expression of reservation by the court about the fairness of the sentence to be imposed (see, People v. Rizzo, 209 A.D.2d 235, 236, 618 N.Y.S.2d 333 lv. denied 85 N.Y.2d 913, 627 N.Y.S.2d 336, 650 N.E.2d 1338;  People v. Martinez 124 A.D.2d 505, 508 N.Y.S.2d 180;  People v. Best 77 A.D.2d 836, 431 N.Y.S.2d 24;  see also, Farrar, supra;  People v. Mastromarino, 194 A.D.2d 487, 599 N.Y.S.2d 287;  People v. Gonzalez, 161 A.D.2d 469, 555 N.Y.S.2d 378;  but cf., People v. Knorr, 149 A.D.2d 619, 540 N.Y.S.2d 692;  People v. Graybosch, 139 A.D.2d 664, 527 N.Y.S.2d 304;  People v. Montoya, 138 A.D.2d 528, 526 N.Y.S.2d 35;  People v. Davis, 190 A.D.2d 908, 593 N.Y.S.2d 599;  People v. Terry, 152 A.D.2d 822, 543 N.Y.S.2d 766).

 Consequently, defendant's claim here lacks merit since there is no indication in the record that the sentencing court expressed any inclination, desire or basis for imposing a lesser sentence but refrained from imposing such a sentence due to its mistaken belief.   The record does show that the court expressed the view at sentencing that the plea agreement was fair and offered defendant the opportunity to withdraw his guilty plea, which defendant rejected.   Furthermore, the sentence was relatively lenient as compared to what defendant might have received had he been convicted of the crimes charged in the indictment.   Since no abuse of discretion on the part of the sentencing court has been alleged, let alone demonstrated, the sentence imposed should not be disturbed (People v. Junco, 43 A.D.2d 266, 268, 351 N.Y.S.2d 1, affd. 35 N.Y.2d 419, 363 N.Y.S.2d 82, 321 N.E.2d 875, cert. denied 421 U.S. 951, 95 S.Ct. 1686, 44 L.Ed.2d 106).

MEMORANDUM DECISION.