Defendant appeals from a judgment of the Criminal Court, New York County (A. Kirke Bartley, Jr., J.), rendered August 18, 2004, after a jury trial, convicting him of operating a motor vehicle while intoxicated and resisting arrest, and imposing sentence.

PER CURIAM:

Judgment of conviction (A. Kirke Bartley, Jr., J.), rendered August 18, 2004, affirmed.

A review of the record shows that the defense and prosecution did not agree upon a negotiated plea. While the People agreed to a guilty plea to driving while intoxicated in satisfaction of all the pending charges, they neither consented to nor negotiated any sentence. Under these circumstances, it was a proper exercise of sentencing discretion for the court to indicate that it would accept an "open plea," one unencumbered by a promised sentence, and defer the imposition of sentence until after it received the presentence report. In the absence of a negotiated plea, defendant's claim that the court abused its discretion and violated his due process rights is unavailing (see CPL 220.10[2]; cf. People v Selikoff, 35 NY2d 227 [1974], cert denied 419 US 1122 [1975])
This constitutes the decision and order of the
court.
Decision Date: December 20, 2006