Opinion
2007-1320 S CR.
Decided October 30, 2008.
Appeal from a judgment of the District Court of Suffolk County, First District (Gaetan B. Lozito, J.), rendered November 1, 2006. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated per se and sentenced him to three years' probation and a $500 fine.
Judgment of conviction affirmed.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
Defendant pleaded guilty to driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2). During the plea colloquy, defendant was advised by the court that it was going to order a presentence report and then determine whether there was any reason why it could not follow the People's recommendation of, inter alia, a conditional discharge. Upon subsequently reading the report, the court found that defendant remained in denial with respect to the extent of his alcohol abuse and alcohol dependence. Accordingly, the court imposed a sentence, inter alia, of three years' probation in lieu of the conditional discharge.
At the outset, it should be noted that because defendant neither objected in the court below to the sentence as ultimately imposed nor moved to withdraw his guilty plea on said ground, his contention on this appeal that the sentence was improperly enhanced from one including a conditional discharge to one including three years' probation is not preserved for our review ( see CPL 470.05; People v Leonard, 306 AD2d 940). The court below, in any event, "never expressly agreed to bind itself to the sentence recommendation" ( People v Bunce, 45 AD3d 982, 984) of a conditional discharge at defendant's change of plea. We note that "[a]bsent a commitment by the court to sentence defendant pursuant to the People's recommendation, the imposition of a harsher sentence did not entitle him to withdraw his plea" ( People v Lopez, 51 AD3d 1210, 1211).
The record does not disclose any bias on the part of the court below. "The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case . . ." ( People v Moreno, 70 NY2d 403, 407 [citations omitted]). Accordingly, the judgment of conviction is affirmed.
McCabe, J.P., Tanenbaum and Molia, JJ., concur.