Appeal from a judgment of the District Court of Nassau County, First District (Robert H. Spergel, J.), rendered January 15, 2009. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated.

ORDERED that the judgment of conviction is modified, as a matter of discretion in the interest of justice, by vacating the sentence of one year's incarceration and sentencing defendant to three years' probation and to a 60-day term of incarceration as a condition thereof; as so modified, the judgment of conviction is affirmed and the matter is remitted to a different judge of the District Court to set the additional conditions of probation, if any.

Defendant was charged with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and with several other violations of the Vehicle and Traffic Law. He entered into a negotiated plea agreement whereby, in exchange for a guilty plea to driving while intoxicated, he would be sentenced to 15 days' incarceration with a possible reduction to 7 days' incarceration upon a favorable report. The District Court also indicated that if defendant did not cooperate with the Probation Department or otherwise "g[o]t into trouble," and the court determined that it could not adhere to the sentencing terms, defendant could be sentenced to up to a year's incarceration or, in the alternative, defendant could withdraw his plea. At sentencing, the District Court considered the probation report to be so unfavorable as to merit a year's incarceration, which the court imposed without protest from the defense.

After defendant was incarcerated for a period of time, his sentence was stayed pending the determination of the appeal. On appeal, defendant contends that the District Court should not have imposed the maximum sentence absent a hearing to review the facts and circumstances alleged to justify such a departure from the promise of 15 days' incarceration upon an unfavorable report; that the available facts did not warrant the District Court's conclusion that defendant had failed to cooperate with the Probation Department and had gotten into trouble to an extent meriting a year's incarceration; that, in any event, the sentence was excessive; and that the District Court, in violation of CPL 380.50 (1), failed to ask him if he wished to speak at sentencing. [*2]

By failing to assert that he was denied any right pursuant to CPL 380.50 (1), and by failing to move to withdraw the plea or to vacate the judgment of conviction, defendant did not preserve for appellate review his claims that he was denied the opportunity to speak at sentencing and that the District Court violated the terms of the plea bargain by imposing the maximum sentence without holding a hearing with respect to the circumstances alleged to justify such sentence (CPL 470.05 [2]; People v Pellegrino, 60 NY2d 636, 637 [1983]; People v Green, 54 NY2d 878, 880 [1981]; People v Billups, 63 AD3d 750 [2009]; People v Kitchens, 46 AD3d 577, 578 [2007]; People v Chiclana, 21 AD3d 823 [2005]).

Insofar as defendant argues that his sentence was unduly harsh and excessive, we agree. While a sentencing court is accorded "wide latitude" in the exercise of its "unique judicial [sentencing] function" (People v Day, 73 NY2d 208, 212 [1989]), a court's sentencing discretion "is not without limits" (People v Naranjo, 89 NY2d 1047, 1049 [1997]). The probation report does not support the District Court's conclusion that defendant's conduct with respect to the Probation Department and with respect to his obligation to avoid "trouble" was so egregious as to merit an increase in defendant's sentence from 15 days to a year's incarceration. Accordingly, we exercise our inherent authority to substitute our sentencing discretion for that of the sentencing court and to modify a sentence which, even if legal, is unduly harsh or severe (CPL 470.15 [6] [b]; People v Delgado, 80 NY2d 780, 783 [1992]; People v Rosenthal, 305 AD2d 327, 329 [2003]). As defendant has already been incarcerated for a period in excess of 60 days in connection with this prosecution, the interest of justice will be served by vacating the sentence of a year's incarceration and sentencing defendant to three years' probation and to a 60-day term of incarceration as a condition thereof (see Penal Law § 60.01 [2] [d]). The matter is remitted to a different judge of the District Court to set the additional conditions of probation, if any.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: June 29, 2010