        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1159
KA 12-01818
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DOUGLAS B. WORTH, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DOUGLAS B. WORTH, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered September 7, 2012. Defendant was
resentenced upon his conviction of attempted burglary in the second
degree.

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

     Memorandum: Defendant appeals from a resentence of imprisonment
of 2 to 4 years as a second felony offender upon his 1990 conviction
of attempted burglary in the second degree (Penal Law §§ 110.00,
140.25 [2]). In our prior decision, we granted defendant’s CPL 440.20
motion to set aside the sentence originally imposed, determining that
the sentence was illegal because Supreme Court failed to sentence him
as a second felony offender (People v Worth, 83 AD3d 1547, 1548;
People v Worth, 83 AD3d 1549). In his CPL 440.20 motion, defendant
argued that he should have been sentenced as a second felony offender
based on a prior conviction in 1989 of attempted robbery in the third
degree. Although the plea colloquy from the 1990 conviction was not
part of the record before us on the appeal from the CPL 440.20 motion
(see Worth, 83 AD3d at 1548), that plea agreement was before the court
when it resentenced defendant, and it showed that defendant had been
promised a sentence of incarceration of 2a to 7 years as a first
felony offender.

     We reject defendant’s contention that the court erred in denying
his motion to withdraw his plea. Defendant argued that the promised
sentence could not be fulfilled and thus the only remedy was to allow
him to withdraw the plea. We reject that contention. The court
resentenced defendant to a sentence with a minimum and maximum term
                                 -2-                          1159
                                                         KA 12-01818

less than what he was promised, and defendant therefore received the
benefit of his bargain (see People v Ruddy, 51 AD3d 1134, 1135-1136,
lv denied 12 NY3d 787; see generally People v Collier, 22 NY3d 429,
433-434, cert denied ___ US ___, 134 S Ct 2730). “[S]pecific
performance of a plea bargain does not foreclose ‘technical divergence
from the precise terms of the plea agreement’ so long as the
defendant’s reasonable expectations are met” (Collier, 22 NY3d at
433).

     Defendant further contends that the court should have held a
hearing pursuant to CPL 400.21 because he raised constitutional
challenges to his 1989 conviction. Defendant, however, waived those
challenges to the 1989 conviction. Defendant was adjudicated a second
felony offender based on the 1989 conviction when he was sentenced on
a conviction in 1994, and he did not show good cause for his failure
to challenge the constitutionality of the 1989 conviction at that time
(see CPL 400.21 [7] [b]; [8]; People v Odom, 63 AD3d 408, 409, lv
denied 13 NY3d 798; People v Scott, 283 AD2d 1006, 1006-1007, lv
denied 96 NY2d 907).

     We have considered the contentions of defendant in his pro se
supplemental brief and conclude that, to the extent that they have not
been addressed by our decision herein, they are either outside the
scope of this appeal or without merit.




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
