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

795
KA 08-01985
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DESMIN K. DIGGS, DEFENDANT-APPELLANT.


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.


     Appeal from a judgment of the Supreme Court, Monroe County
(Stephen R. Sirkin, A.J.), rendered August 20, 2008. The judgment
convicted defendant, upon his plea of guilty, of robbery in the second
degree, criminal mischief in the second degree (two counts), petit
larceny, assault in the second degree (two counts), reckless
endangerment in the first degree, and leaving the scene of an incident
without reporting (three counts).

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

     Memorandum: 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 AD3d 1312, 1312;
People v Tatro, 8 AD3d 823, 824, lv denied 3 NY3d 682). 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
                                 -2-                              795
                                                            KA 08-01985

plea agreement (see Abdallah, 50 AD3d at 1313; Tatro, 8 AD3d at 824).

     The sentence is not unduly harsh or severe.




Entered:   June 19, 2015                           Frances E. Cafarell
                                                   Clerk of the Court
