People v. Appelgate

Judgment, Supreme Court, Bronx County (Richard Price, J.), rendered March 7, 2002, convicting defendant, upon his plea of guilty, of criminal sale of a prescription for a controlled substance (11 counts), criminal sale of a controlled substance in the fourth degree and criminal solicitation in the fourth degree (two counts), and sentencing him to an aggregate term of six months concurrent with five years probation, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the term of incarceration, and otherwise affirmed. The matter is remitted to Supreme Court, Bronx County, for further proceedings pursuant to CPL 460.50 (5).

Defendant’s motion to withdraw his guilty plea was properly denied. The plea allocution record clearly establishes the voluntariness of the plea. Defendant’s claim that he was emotionally distraught at the time the plea was entered was not a proper basis for its withdrawal (see People v Alexander, 97 NY2d 482, 484-486).

We find the sentence excessive to the extent indicated. Concur — Williams, P.J., Buckley, Sullivan and Lerner, JJ.