People v. Lopez

Jan 17, 2002
Versions:290 A.D.2d 323
735 N.Y.S.2d 781
2002 N.Y. App. Div. LEXIS 428

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered July 6, 2000, convicting defendant, upon his plea of guilty, of attempted arson in the first degree, and sentencing him to a term of 93Ai to 19V2 years, unanimously affirmed.

Defendant’s contention that the court erred in failing to conduct a hearing to determine whether his cooperation had been sufficient, under the terms of the agreement, to require specific performance of the People’s promise of leniency, was not preserved for appellate review since defendant neither requested such a hearing nor moved to withdraw his plea of guilty (see, People v Anonymous, 249 AD2d 167), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the conflicting accounts of the crime that defendant presented during interviews with federal and state prosecutors after his plea called his credibility into question, making it impossible to utilize him as a witness in any future prosecutions. The record, including defendant’s concession that at one point following his plea he completely recanted his own admissions of guilt, fully supports the court’s finding that defendant violated the terms of the agreement. In any event, the cooperation agreement clearly provided that it was up to the People to determine whether defendant’s cooperation was satisfactory. Furthermore, there was no improper modification of the agreement. We note that defendant received a sentence that was significantly shorter than the maximum sentence he could have received pursuant to the terms of the agreement. We have considered and rejected defendant’s related arguments.

We perceive no basis for reduction of sentence. Concur— Ellerin, J.P., Lerner, Rubin, Buckley and Friedman, JJ.