People v. McIntosh

—Appeal from a judgment of the County Court of Albany County (Teresi, J.), rendered October 5, 1994, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.

At the time of the plea allocution, County Court advised defendant that it would sentence him to a prison term of l1/s to 4 years on his plea of guilty to burglary in the third degree provided nothing in the presentence report warranted a harsher sentence. However, because the presentence report revealed that defendant had prior felony convictions, County Court sentenced him as a second felony offender to a prison term of 2 to 4 years. Defendant argues that his conviction should be reversed because he was not permitted to withdraw his guilty plea at the time the harsher sentence was imposed. We disagree. County Court informed defendant that it would allow him to withdraw his guilty plea if it felt that a more severe penalty was appropriate. At the sentencing hearing, however, defendant did not move to withdraw his guilty plea, but rather moved for an adjournment to consider this option. County Court’s denial of defendant’s motion did not amount to the denial of a motion to withdraw his guilty plea. Accordingly, the judgment is affirmed.

Cardona, P. J., Crew III, White, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed.