PEOPLE v. BARTON (1999)

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

The PEOPLE of the State of New York, Respondent, v. Earl BARTON, a/k/a David DeLarge, Defendant-Appellant.

Decided: October 26, 1999

ELLERIN, P.J., ROSENBERGER, WILLIAMS, WALLACH and ANDRIAS, JJ.

Ginger Suzan James, for Respondent. Denise Fabiano, for Defendant-Appellant.

Judgments, Supreme Court, Bronx County (Edward Davidowitz, J.), rendered March 10, 1998, convicting defendant, on his pleas of guilty, of two counts of criminal sale of a controlled substance in the fifth degree, and sentencing him to concurrent terms of 21/313 to 7 years, unanimously affirmed.

We perceive no abuse of sentencing discretion. The record fails to support defendant's claim that the sentence was motivated by vindictiveness due to defendant's successful challenge of his alleged second felony offender status. The court's imposition of a renegotiated sentence of 21/313 to 7 years in place of the sentence of 21/212 to 5 years (which would not have been lawful in the circumstances) that had been negotiated on the assumption that defendant was a second felony offender merely reflected the fact that the plea negotiations focused upon the minimum period of imprisonment rather than the maximum. Moreover, defendant was afforded an opportunity to withdraw his plea, which he declined to do.

MEMORANDUM DECISION.

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