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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Jonah SEYMOUR, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  GREEN, J.P., SCUDDER, KEHOE, SMITH, AND LAWTON, JJ. Michael J. Pulver, North Syracuse, for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20 [1] ), defendant contends that Supreme Court failed to exercise its discretion with respect to sentencing but instead erroneously deemed itself bound by the sentencing commitment made in connection with the plea bargain (see People v. Farrar, 52 N.Y.2d 302, 305-307, 437 N.Y.S.2d 961, 419 N.E.2d 864;  see also People v. Schafer, 19 A.D.3d 1133, 797 N.Y.S.2d 206;  People v. Figueroa, 17 A.D.3d 1130, 1131, 794 N.Y.S.2d 262;  People v. Stanley, 309 A.D.2d 1254, 767 N.Y.S.2d 712).   The record does not support defendant's contention.   Rather, we conclude that the comments of the court did not indicate any misapprehension on its part that it lacked discretion in the matter of sentencing.  “In any event, a court's expression of an erroneous belief that it lacks any sentencing discretion following a negotiated plea ․ will warrant a [remittal] for resentencing only where the record indicates possible harm flowing from the court's error, such as some indication of reservation by the court as to the fairness of the sentence to be imposed” (People v. Diaz, 304 A.D.2d 468, 468, 757 N.Y.S.2d 731, lv. denied 100 N.Y.2d 561, 763 N.Y.S.2d 818, 795 N.E.2d 44;  see People v. Fishman, 14 A.D.3d 411, 787 N.Y.S.2d 866;  People v. Pena, 309 A.D.2d 687, 688, 766 N.Y.S.2d 196, lv. denied 2 N.Y.3d 744, 778 N.Y.S.2d 469, 810 N.E.2d 922;  People v. Barzge, 244 A.D.2d 213, 664 N.Y.S.2d 283, lv. denied 91 N.Y.2d 889, 669 N.Y.S.2d 3, 691 N.E.2d 1029).   Here, the court expressed no reservation with respect to the fairness to defendant of the sentence to be imposed in accordance with the plea bargain, and the record does not otherwise indicate “possible harm flowing from the court's [alleged] error” (Diaz, 304 A.D.2d at 468, 757 N.Y.S.2d 731).

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