PEOPLE v. McCORMACK

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. John McCORMACK, Jr., Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND LAWTON, JJ. Muldoon & Getz, Rochester (Kimberly F. Duguay of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Plaintiff-Respondent.

On appeal from a judgment convicting him, upon his plea of guilty, of felony driving while intoxicated (Vehicle and Traffic Law § 1192[3];  § 1193[1] [c][i] ), defendant contends that Supreme Court, Monroe County, failed to adhere to its promise to impose a sentence concurrent to the sentence to be imposed in a pending matter in Orleans County.   We reject that contention.   The court's promise was based on the statement of defendant to the court that he would plead guilty to the charge of felony driving while intoxicated in Orleans County, but defendant thereafter withdrew his plea of guilty in Orleans County.  “Under these circumstances[,] ‘there was a waiver of any rights the defendant may have had to request the fulfillment of the original promise as to sentence’ ” (People v. Alvarado, 160 A.D.2d 1012, 1013, 554 N.Y.S.2d 726, lv. denied 76 N.Y.2d 784, 559 N.Y.S.2d 989, 559 N.E.2d 683 76 N.Y.2d 937, 563 N.Y.S.2d 66, 564 N.E.2d 676).   We have reviewed defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: