MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Sullivan County (James R. Farrell, J.), rendered July 18, 2022, convicting defendant upon his plea of guilty of the crime of driving while intoxicated.
Following a motor vehicle accident that resulted in significant injuries to the victim, defendant was charged by indictment with aggravated vehicular assault, two counts of driving while intoxicated, leaving the scene of an incident without reporting and a traffic infraction. In satisfaction thereof, defendant pleaded guilty to driving while intoxicated, a class D felony, with the understanding that he would be sentenced to an indeterminate prison term of 2 to 5 years. Defendant also purportedly waived the right to appeal. On the date originally scheduled for sentencing, it was recognized that the negotiated sentence was illegal (see Penal Law § 70.00[3][b]). As a result, County Court and the parties agreed upon a new resolution whereby defendant would be sentenced to 12/323 to 5 years in prison. However, after considering a victim impact statement, the court informed the parties that it deemed the proposed sentence inappropriate in light of that statement, as well as defendants actions following the accident and his four previous alcohol-related driving convictions. County Court thus declined to impose the contemplated sentence, and instead provided defendant the opportunity to withdraw his plea or accept a prison sentence of 21/313 to 7 years. The matter was adjourned, and defendant obtained new counsel who submitted a presentence memorandum requesting that County Court impose the 12/323 to 5 year prison sentence upon which the parties had agreed. At the rescheduled sentencing proceeding, County Court denied this request and, upon defendant declining the opportunity to withdraw his plea, sentenced him to 21/313 to 7 years in prison. Defendant appeals.
Defendants sole contention is that County Court erred in not imposing the negotiated prison sentence of 12/323 to 5 years. Initially, we find that defendants argument is not foreclosed by his unchallenged appeal waiver, as the waiver is unenforceable as to this issue since the imposed sentence differed from the sentence upon which the waiver was premised (see People v. Stevens, 41 A.D.3d 1030, 1031, 838 N.Y.S.2d 701 [3d Dept. 2007]; People v. Haslow, 20 A.D.3d 680, 680–681, 797 N.Y.S.2d 784 [3d Dept. 2005], lv denied 5 N.Y.3d 828, 804 N.Y.S.2d 43, 837 N.E.2d 742 [2005]; see also People v. Elmendorf, 141 A.D.3d 1035, 1035–1036, 36 N.Y.S.3d 310 [3d Dept. 2016]).
Turning to the merits, we find unavailing defendants assertion that he had a right to specific performance of the plea agreement because, at the time of sentencing, County Court had not been presented with any new information upon which it could reasonably base a decision to depart from the bargained-for sentence. To begin with, contrary to defendants claim, there indeed was new information before the court in the form of the victim impact statement, which the court was required to consider before imposing sentence (see CPL 390.20[1]; 390.30[3][b]), and which provided a sufficient basis to allow the court, in its discretion, to depart from the sentencing promise (see Matter of Hussain v. Lynch, 215 A.D.3d 121, 131, 187 N.Y.S.3d 426 [3d Dept. 2023]; People v. Jones, 287 A.D.2d 741, 742, 732 N.Y.S.2d 246 [2d Dept. 2001], lv denied 97 N.Y.2d 706, 739 N.Y.S.2d 106, 765 N.E.2d 309 [2002]). In any event, we note that, even in the absence of new information provided to the court, “[a] defendant is not entitled to specific performance of a plea bargain unless he or she has been placed in a no-return position in reliance on the plea agreement” (Matter of Hussain v. Lynch, 215 A.D.3d at 128, 187 N.Y.S.3d 426 [internal quotation marks, brackets and citations omitted]). Inasmuch as defendant acknowledges that he did not detrimentally rely upon the plea bargain, he was entitled to no more than the withdrawal of his plea (see id.; People v. Mattucci, 92 A.D.3d 1029, 1030, 937 N.Y.S.2d 727 [3d Dept. 2012], lv denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012]), an option that he declined to exercise.
ORDERED that the judgment is affirmed.
Ceresia, J.
Egan Jr., J.P., Lynch, Reynolds Fitzgerald and Powers, JJ., concur.