Opinion
December 29, 1980
Appeal by defendant (by permission) from an order of the County Court, Nassau County, dated May 27, 1980, which denied his motion to vacate a judgment of the same court, rendered August 20, 1974, which, upon a plea of guilty, convicted him of attempted burglary in the third degree and imposed sentence. Order affirmed. The Judge presiding at the plea proceeding promised that he would impose a sentence on defendant which would run concurrently with a previously imposed sentence. He did not condition this promise on a presentence report. After receiving the report the Judge offered to allow defendant to withdraw his plea or accept a consecutive sentence. The defendant took the second option. In our view the Judge's failure to condition the sentence promise on a presentence report did not preclude him from withdrawing the promise after he received the report (see People v. Selikoff, 35 N.Y.2d 227, cert den 419 U.S. 1122). The information contained within such report was such as to justify the withdrawal of the promise. Finally, the fact that defendant was induced to name his codefendant at the time he entered his plea does not constitute such a change of position as to entitle him to specific performance of the plea bargain (cf. People v. McConnell, 49 N.Y.2d 340) under the facts and circumstances of this case, inasmuch as defendant had previously revealed his codefendant's name to the District Attorney in a written statement. Lazer, J.P., Gibbons, Gulotta and Cohalan, JJ., concur.