Opinion
January 23, 1984
Appeal by defendant from a judgment of the County Court, Nassau County (Samenga, J.), rendered June 2, 1982, convicting him of burglary in the first degree, upon his plea of guilty, and imposing sentence. Judgment affirmed. Defendant challenges his conviction, entered upon his plea of guilty, in three respects: (1) that the County Court erred in conditioning acceptance of the plea on his implicating another in the crime; (2) that the court erred in failing to impose the lesser sentence it had indicated prior to accepting the plea; and (3) that the court erred in sua sponte vacating defendant's original plea of guilty. He does not question the sufficiency of the plea allocution or the voluntariness of the plea. Defendant seeks specific performance of the original plea agreement or, in the alternative, vacatur of the second plea of guilty. There is no basis for the relief sought. A court can impose reasonable conditions on a plea of guilty when that plea is to less than all of the charges against the defendant but satisfies all of them ( People v Esajerre, 35 N.Y.2d 463, 467). Such conditions must not, however, "amount to overreaching or a denial of a defendant's entitlement to fundamental fairness" ( People v Miller, 79 A.D.2d 687, 688, cert den 452 U.S. 919). There is nothing unfair about requiring a defendant to testify against another, at least where, as in the case at bar, the other is already under indictment for the same crimes (cf. People v Suraci, 79 A.D.2d 716). Defendant's second contention is likewise without merit. It is well established that "any sentence `promise' at the time of plea is, as a matter of law and strong public policy, conditioned upon its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources" ( People v Selikoff, 35 N.Y.2d 227, 238, cert. den. 419 U.S. 1122). The court clearly explained to defendant that the plea agreement was so conditioned. The probation report was a sufficient basis for the court to refuse to abide by its original promise. As a general rule, the sentencing court is without authority to vacate a plea of guilty without the consent of the defendant ( People v Prato, 89 A.D.2d 860; People v Ford, 65 A.D.2d 822). Where the court determines that it cannot sentence the defendant as indicated prior to acceptance of the plea, the proper procedure is to allow defendant the choice of either withdrawing his guilty plea or accepting a proper sentence ( People v Mack, 84 A.D.2d 540). In the case at bar, however, the defendant, by pleading guilty again to the same charge, effectively chose the latter option. Titone, J.P., Gibbons, Thompson and Boyers, JJ., concur.