Opinion
October 4, 1991
Appeal from the Chautauqua County Court, Adams, J.
Present — Doerr, J.P., Denman, Green, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Where, as here, the sentencing court determines that it cannot adhere to its sentencing promise indicated prior to the acceptance of the plea, the proper procedure is to afford defendant the option of either withdrawing his plea or accepting an appropriate sentence (see, People v Selikoff, 35 N.Y.2d 227, 238-239, cert denied 419 U.S. 1122; People v Parry, 150 A.D.2d 809, 810, lv denied 74 N.Y.2d 816; People v Pittman, 129 A.D.2d 592, lv denied 70 N.Y.2d 716; People v Grant, 99 A.D.2d 536; People v Mack, 84 A.D.2d 540). Generally, "`[a] defendant who has not * * * changed his position will * * * be entitled to no more than the vacation of his plea if the court concludes that it cannot adhere to the promise given, for the simple reason that vacating the plea restores him to the same position he was in before the plea was taken'" (People v Schultz, 73 N.Y.2d 757, 758, quoting People v McConnell, 49 N.Y.2d 340, 347).
Here, the court twice properly afforded defendant the option of either withdrawing his guilty plea and proceeding to trial on the original indictment or accepting the proper sentence. Defendant, by declining to withdraw his guilty plea, effectively chose the latter option (see, People v Grant, supra).
Finally, the sentence imposed was not harsh and excessive.