PEOPLE v. BRUNELLE (2008)

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered August 22, 2006, convicting defendant upon his plea of guilty of the crime of rape in the third degree.

Defendant pleaded guilty to rape in the third degree with the understanding that County Court would sentence him to 10 years of probation supervision.   At the time of sentencing, however, the court informed defendant that it would not go forward with the agreed-upon sentence based upon information contained in the presentence investigation report.   Instead, the court advised that it would either sentence defendant to 1 to 3 years in prison or allow him to withdraw his guilty plea.   The matter was adjourned in order to give defendant time to consider his options.   Defendant ultimately declined the opportunity to withdraw his plea and was sentenced as indicated by County Court to a prison term of 1 to 3 years.   Defendant now appeals.

We affirm.   Noting that County Court retained the discretion to impose an appropriate sentence up until the time of sentencing (see People v. Yanus, 13 A.D.3d 804, 805, 786 N.Y.S.2d 264 [2004];  People v. Hill, 253 A.D.2d 942, 942, 680 N.Y.S.2d 119 [1998], lv. denied 93 N.Y.2d 874, 689 N.Y.S.2d 436, 711 N.E.2d 650 [1999] ), we reject defendant's assertion that the court erred in failing to abide by the 10-year probation sentence which was originally contemplated.   The court sufficiently articulated its reasons on the record for departing from the original sentence and, in any event, afforded defendant all of the relief to which he was entitled by offering him the chance to withdraw his guilty plea prior to fixing sentence (see People v. Yanus, 13 A.D.3d at 805, 786 N.Y.S.2d 264).   Defendant's remaining contentions, to the extent not specifically addressed herein, have been considered and found to be unavailing.

ORDERED that the judgment is affirmed.