Opinion
December 5, 1991
Appeal from the County Court of Ulster County (Vogt, J.).
Defendant's only contention on appeal is that County Court abused its discretion in sentencing him to a term of imprisonment of 1 to 3 years because the court totally ignored the presentence report recommendation of probation. First, the recommendation in a presentence report is not binding on the sentencing court (see, People v Semkus, 122 A.D.2d 287, 288, lv denied 68 N.Y.2d 1004). In addition, although County Court informed defendant at the time of his plea that it would not sentence him to anything harsher than 1 to 3 years' imprisonment, it never made any promises to defendant with respect to any sentence of probation. In fact, the court specifically told defense counsel that defendant should not expect a prison sentence less than 1 to 3 years. Furthermore, even though the court could have sentenced defendant to a definite rather than an indeterminate sentence of imprisonment, some term of imprisonment was still mandated (see, Penal Law § 70.00). As there is nothing in this record to support defendant's contention that the court abused its discretion or to warrant the substitution of our own discretion for that of the sentencing court (see, People v Suitte, 90 A.D.2d 80), the judgment must be affirmed.
Mahoney, P.J., Casey, Levine, Mercure and Crew III, JJ., concur. Ordered that the judgment is affirmed and matter remitted to the County Court of Ulster County for further proceedings pursuant to CPL 460.50 (5).