People v. Barton , 697 N.Y.S.2d 591 ( 1999 )

—Judgments, Supreme Court, Bronx County (Edward Davidowitz, J.), rendered March 10, 1998, convicting defendant, on his pleas of guilty, of two counts of criminal sale of a controlled substance in the fifth degree, and sentencing him to concurrent terms of 21/s to 7 years, unanimously affirmed.

We perceive no abuse of sentencing discretion. The record fails to support defendant’s claim that the sentence was motivated by vindictiveness due to defendant’s successful challenge of his alleged second felony offender status. The court’s imposition of a renegotiated sentence of 21/3 to 7 years in place of the sentence of 2V2 to 5 years (which would not have been lawful in the circumstances) that had been negotiated on the assumption that defendant was a second felony offender merely reflected the fact that the plea negotiations focused upon the minimum period of imprisonment rather than the maximum. Moreover, defendant was afforded an opportunity to withdraw his plea, which he declined to do. Concur — Ellerin, P. J., Rosenberger, Williams, Wallach and Andrias, JJ.