Opinion
May 27, 1993
Appeal from the Supreme Court, New York County (Edward McLaughlin, J.).
At the plea proceeding, defendant made a full waiver of his rights, acknowledged that he was pleading guilty knowingly and voluntarily in order to receive a more lenient sentence, and allocuted to the facts of the offense. At sentencing, defendant expressed a change of mind as to the length of the term. The court found that defendant had pleaded guilty knowingly and voluntarily, rejected defendant's contentions, and, upon the People's refusal to consent to a modified sentence, the court refused to set aside the agreement. In a post-judgment motion, defendant further claimed that he was now HIV positive. He contended that this was a basis to vacate judgment, insofar as it manifested a "mistake of fact" and that he never would have agreed to the People's offer had he known such at the time of the plea proceeding; he also contended that this was a basis to reduce the sentence.
We find no basis to disturb the determination of the sentencing court that there was no legal basis to void the plea agreement, nor do we find that defendant's HIV status required a different result (People v Howard, 164 A.D.2d 895, 896-897, lv denied 76 N.Y.2d 940). We reject defendant's contention that the court failed to perceive its authority to set aside the plea agreement. Rather, when the People declined to consent to a reduced sentence (CPL 220.10, [4]), the court found the agreed-upon sentence to be appropriate and defendant has not demonstrated a basis for vacatur or re-sentencing either under CPL 440.10 or 440.20. Nor do we find the sentence excessive.
Concur — Sullivan, J.P., Carro, Ellerin and Wallach, JJ.