People v. Kessner

Mar 13, 1992
Appeal No. 1
Versions:181 A.D.2d 1044

— Judgment unanimously affirmed. Memorandum: It was not error for the court to enhance defendant’s sentence, without a hearing, beyond that originally negotiated in the plea agreement. At the plea proceeding the court conditioned its promised sentence upon the defendant "staying out of trouble” pending sentencing. While waiting to be sentenced, defendant was arrested for crimes involving a threatening telephone call to his former girlfriend, who had obtained an order of protection against him. Since defendant did not deny making the call and the contact was specifically prohibited by the protection order then in effect, a hearing was not necessary (see, People v Redman, 148 AD2d 966). Accordingly, the court was not bound by its promised sentence and was free to impose a greater sentence (see, People v Brooks, 154 AD2d 931; People v Caridi, 148 AD2d 625, 626). There is no merit to defendant’s appeal from the court’s order denying his motion to set aside the sentence pursuant to CPL 440.20. Defendant’s remaining con*1045tentions lack merit. (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J. — Attempted Criminal Mischief, 1st Degree.) Present — Denman, P. J., Green, Pine, Law-ton and Doerr, JJ.