People v. Jackson

Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty of grand larceny in the third degree (Penal Law § 155.35) and sentencing her as a second felony offender to an indeterminate term of incarceration of 3 to 6 years. Although defendant failed to preserve for our review her contention that County Court erred in imposing an enhanced sentence based upon her post-plea conduct (see, CPL 470.05 [2]; People v Perry, 252 AD2d 990, lv denied 92 NY2d 929), we nevertheless exercise our power to address that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]) and modify the judgment by vacating the sentence and imposing the bargained-for sentence of an indeterminate term of incarceration of 2 to 4 years. The court erred in enhancing the sentence based solely upon its subjective determination that defendant failed to comply with the condition that she respond truthfully and con*1050sistently to questions posed by the Probation Department (see, People v Parker, 271 AD2d 63, 70, lv denied 95 NY2d 967). (Appeal from Judgment of Monroe County Court, Bristol, J. — Grand Larceny, 3rd Degree.) Present — Green, J. P., Kehoe, Burns, Gorski and Lawton, JJ.