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

408
KA 11-01909
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

GARRETT ARCHER, DEFENDANT-APPELLANT.


ANTHONY J. CERVI, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered May 26, 2011. The judgment revoked
defendant’s sentence of probation and imposed a sentence of
imprisonment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed and the matter is remitted to Supreme Court, Erie
County, for proceedings pursuant to CPL 460.50 (5).

     Memorandum: Defendant appeals from a judgment that revoked the
sentence of probation imposed upon his conviction of attempted rape in
the first degree (Penal Law §§ 110.00, 130.35 [1]) and sentenced him
to a determinate term of imprisonment. Contrary to defendant’s
contention, Supreme Court did not err in denying his motion to
withdraw his plea upon revoking the original sentence of a period of
probation imposed by the court. “While a defendant must be afforded
the opportunity to withdraw his or her plea when the plea was induced
by a court’s sentencing promise and the court subsequently finds that
sentence to be inappropriate” (People v Lopez, 51 AD3d 1210, 1211
[emphasis added]), here the court made no promises regarding
defendant’s sentence. Thus, the court was not obligated to afford
defendant the opportunity to withdraw his plea (see id.; People v
Carlton, 2 AD3d 1353, 1354, lv denied 1 NY3d 625; People v Hannig
[appeal No. 1], 258 AD2d 908).




Entered:   April 20, 2012                          Frances E. Cafarell
                                                   Clerk of the Court
