People v. Galvin ( 1998 )

—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: We reject the contention of defendant that County Court erred in refusing to accept his guilty plea. Where, as here, the plea is to less than the entire indictment, the decision whether to accept the plea “is left entirely to the discretion of the People, subject to [the court’s] consent” {People v Haas, 245 AD2d 825, 826; see, People v Miller, 126 AD2d 868, 869, Iv denied 69 NY2d 884). Further, because defendant’s factual allocution raised an agency defense, the court properly conducted further inquiry {see, People v Lopez, 71 NY2d 662, 665-666; People v Mosher, 222 AD2d 1034) and, upon such inquiry, granted the prosecutor’s request to reject the plea.

We reject the further contention of defendant that he was deprived of effective assistance of counsel; “the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation,” establish that defendant received meaningful representation (People v Baldi, 54 NY2d 137, 147; see, People v Flores, 84 NY2d 184, 186-187).

We reject defendant’s contention that the sentence is illegal. “The imposition of a more severe sentence after trial than that offered to defendant pursuant to a plea offer that he rejected, without more, does not support the contention of defendant that he was penalized for exercising his right to go to trial” (People v Jones, 229 AD2d 980, lv denied 89 NY2d 925; see, People v Pena, 50 NY2d 400, 411-412, rearg denied 51 NY2d 770, cert denied 449 US 1087; People v Reed, 222 AD2d 616, lv denied 87 NY2d 1024). However, we modify the judgment as a matter of discretion in the interest of justice by reducing the sentences imposed for two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree to indeterminate terms of incarceration of 7 to 14 years. (Appeal from Judgment of Wayne County Court, Kehoe, J. — Criminal Sale Controlled Substance, 3rd Degree.) Present — Lawton, J. P., Hayes, Callahan, Balio and Boehm, JJ.