Opinion
February 11, 1993
Appeal from the County Court of Broome County (Mathews, J.).
Defendant was indicted for the A-I felony of criminal possession of a controlled substance in the first degree, and subsequently pleaded guilty to the A-II felony of criminal possession of a controlled substance in the second degree. Defendant was sentenced in accordance with the plea agreement to a prison term of 8 1/3 years to life, the maximum term of imprisonment for an A-II felony. On this appeal, defendant contends that the sentence was harsh and excessive and constituted cruel and unusual punishment. Defendant also argues that County Court failed to exercise any discretion in accepting the plea and the condition that defendant be sentenced to the severest allowable sentence.
Initially, we reject defendant's contention that the sentence was cruel and unusual. The statute in question is not unconstitutional on its face (see, People v Broadie, 37 N.Y.2d 100, cert denied 423 U.S. 950). Further, given the amount of cocaine involved and defendant's admitted knowing possession, we do not find that this is one of the "rare case[s]" envisioned in People v Broadie (supra, at 119) in which the application of the statute constitutes cruel and unusual punishment (see, People v Marine, 162 A.D.2d 275; People v Miller, 126 A.D.2d 868, lv denied 69 N.Y.2d 884). In addition, in light of these facts, as well as the facts that defendant was allowed to plead guilty to a lesser crime than the one charged and agreed to the sentence as a part of a negotiated plea bargain, we do not find that the sentence imposed by County Court is harsh and excessive (see, People v Hadden, 158 A.D.2d 856, lv denied 76 N.Y.2d 847).
We find, however, that County Court erred in failing to exercise its discretion in sentencing defendant. In accepting defendant's plea, County Court stated that it was "obligated" to impose the harshest sentence allowable based upon the plea bargain. The failure of County Court to exercise its independent judgment requires that the case be remitted to County Court for resentencing (see, People v Terry, 152 A.D.2d 822). Should County Court impose a sentence more lenient than that agreed to by the People, they must be accorded an opportunity to withdraw their consent to plea (see, supra).
Yesawich Jr., J.P., Crew III, Mahoney and Harvey, JJ., concur. Ordered that the judgment is modified, on the law, by vacating the sentence imposed, and matter remitted to the County Court of Broome County for resentencing.