PEOPLE v. HILLIE

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Gary HILLIE, Defendant-Appellant.

Decided: March 21, 2001

PRESENT:  PINE, J.P., HAYES, HURLBUTT, SCUDDER and LAWTON, JJ. Vincent F. Gugino, Buffalo, for defendant-appellant. Joseph Kilbridge, Buffalo, for plaintiff-respondent.

 The contention of defendant that he was improperly sentenced as a second felony offender is unpreserved for our review (see, People v. Perez, 245 A.D.2d 143, 665 N.Y.S.2d 883, lv. denied 91 N.Y.2d 944, 671 N.Y.S.2d 724, 694 N.E.2d 893;  see also, People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938;  People v. James [Adolphus], 159 A.D.2d 723, 553 N.Y.S.2d 1014).   In any event, we conclude that defendant's contention is without merit.

 Defendant contends that he did not controvert the allegations in the predicate felony statement because the People had indicated to defense counsel that they would withdraw their consent to the plea agreement if defendant were not sentenced as a second felony offender.   Contrary to defendant's contention, the People are entitled to withdraw their consent to a plea agreement if the defendant is to be sentenced to a lesser sentence than that bargained for (see, People v. Farrar, 52 N.Y.2d 302, 307, 437 N.Y.S.2d 961, 419 N.E.2d 864).

Judgment unanimously affirmed.

MEMORANDUM: