State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 22, 2015 104907 

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ANDREW ABARE,

Appellant.

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Calendar Date: November 18, 2014

Before: Lahtinen, J.P., McCarthy, Rose, Egan Jr. and Clark, JJ.

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James P. Milstein, Public Defender, Albany (Angela Kelley

of counsel), for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark

of counsel), for respondent.

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Rose, J.

Appeal from a judgment of the County Court of Albany County

(Breslin, J.), rendered September 13, 2011, upon a verdict

convicting defendant of the crime of criminal possession of a

controlled substance in the third degree.

Defendant was charged with criminal possession of a

controlled substance in the third degree in Washington County in

January 2010. Five months later, in June 2010, he was arrested

for possession of over 22 ounces of cocaine in Albany County and

charged with two counts of criminal possession of a controlled

substance in the third degree. Defendant then entered into a

plea bargain on the Albany County charges and agreed to plead

guilty to criminal possession of a controlled substance in the
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fifth degree with a jail sentence of one year. After entering

his plea in Albany County, but before sentencing, he pleaded

guilty to the charge in Washington County and received a prison

term of four years, with two years of postrelease supervision. 

When defendant later appeared for sentencing in Albany County,

County Court indicated that it had not been aware of the prior

arrest in Washington County and refused to sentence him as

originally agreed. Defendant rejected a new offer of two years

of imprisonment, and he was allowed to withdraw his guilty plea. 

After a jury trial, he was found guilty of criminal possession of

a controlled substance in the third degree, and County Court

sentenced him to a prison term of four years, with two years of

postrelease supervision, to run consecutively to the sentence

imposed in Washington County.

Defendant appeals, arguing that he is entitled to specific

performance of his plea agreement in Albany County because he had

detrimentally relied upon it when he entered into his Washington

County plea bargain. We are unpersuaded. Defendant did not make

this argument when he appeared for sentencing on his Albany

County plea agreement. Moreover, in the absence of any

indication in the record that County Court considered the

Washington County charge as part of the Albany County plea

agreement, the court was entitled to rely on the new information

in determining that it was unwilling to abide by the agreement

and, therefore, defendant was appropriately restored to the

status quo upon withdrawal of his plea (see People v McConnell,

49 NY2d 340, 348 [1980]; People v Bonville, 69 AD3d 1223, 1224

[2010]; People v Brooks, 284 AD2d 796, 797-798 [2001]; see also

People v Walker, 187 AD2d 909, 909 [1992], lv denied 81 NY2d 796

[1993]). 

Further, we do not find that the sentence imposed by County

Court is harsh or excessive. Although defendant points out that

his criminal history is limited to the two 2010 arrests, County

Court took this factor into consideration in determining that a

maximum sentence was not warranted (see People v Williams, 65

AD3d 1423, 1424 [2009]). Nor do we find that defendant's claimed

substance abuse problems rise to the level of extraordinary

circumstances (see People v Potter, 54 AD3d 444, 445 [2008];

People v May, 301 AD2d 784, 786 [2003], lv denied 100 NY2d 564
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[2003]). In the absence of such circumstances, we decline to

disturb County Court's exercise of its discretion in imposing the

sentence. 

Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court