People v. Diggs, 795 KA 08-01985

• Decision Date: 19 June 2015
• Docket Number: 795 KA 08-01985
• Citation: 12 N.Y.S.3d 475,129 A.D.3d 1675,2015 N.Y. Slip Op. 05367
• Parties: The PEOPLE of the State of New York, Respondent, v. Desmin K. DIGGS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1675

12 N.Y.S.3d 475

2015 N.Y. Slip Op. 05367

The PEOPLE of the State of New York, Respondent

v.Desmin K. DIGGS, Defendant–Appellant.

795 KA 08-01985

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

June 19, 2015.

Charles T. Noce, Conflict Defender, Rochester (Kimberly J. Czapranski of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.

OpinionMEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, robbery in the second degree (Penal Law § 160.10[3] ). Defendant contends that his plea was not knowing, voluntary and intelligent because the sentence imposed did not comport with the plea agreement, i.e., he did not receive credit for cooperating with the prosecutor's office in an unrelated matter. Defendant failed to move to withdraw his plea of guilty or to vacate the judgment of conviction, and thus he failed to preserve that contention for our review (see People v. Abdallah, 50 A.D.3d 1312, 1312, 855 N.Y.S.2d 744 ; People v. Tatro, 8 A.D.3d 823, 824, 778 N.Y.S.2d 575, lv. denied 3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838 ). In any event, defendant's contention is without merit. During the plea colloquy, Supreme Court promised defendant a sentence of nine years' incarceration upon a plea to 10 of the 11 counts of the indictment, and defendant indicated that he understood that promise. Also at the time of the plea, defense counsel sought, and the court agreed to grant, an adjournment of sentencing to permit defense counsel to “discuss with the District Attorney's Office the potential of any type of credit due” for defendant's alleged prior cooperation. The court sentenced defendant to, inter alia, a determinate term of nine years' incarceration. Inasmuch as the court imposed the promised sentence, we reject his contention that his sentence violated the terms of his plea agreement (see Abdallah, 50 A.D.3d at 1313, 855 N.Y.S.2d 744 ; Tatro, 8 A.D.3d at 824, 778 N.Y.S.2d 575 ).

The sentence is not unduly harsh or severe.

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