Opinion
September 19, 1991
Appeal from the County Court of Greene County (Battisti Jr., J.).
Defendant claims that County Court improperly denied his motion for a hearing to determine whether he had provided the "material assistance" required under Penal Law § 65.00 (1) (b) to qualify for lifetime probation. At the time of defendant's plea, the People indicated that they would recommend a prison sentence of 4 1/2 to 9 years with a "possibility" of lifetime probation if defendant cooperated with the authorities; at defendant's sentencing the People stated that defendant had not provided such assistance to the authorities. No promises were made for such a recommendation (see, People v. Lofton, 58 A.D.2d 610) and, in the absence of consent or a recommendation by the People to a sentence of lifetime probation as required by statute, the court lacked the authority to impose such a sentence (see, People v Smith, 154 A.D.2d 934, lv denied 75 N.Y.2d 776; People v Edwards, 148 A.D.2d 923, lv denied 74 N.Y.2d 794). Accordingly, the prison sentence of 4 1/2 to 9 years imposed pursuant to the plea bargain should be affirmed (see, People v. Loebl, 77 A.D.2d 949).
Weiss, J.P., Mikoll, Yesawich Jr., Levine and Crew III, JJ., concur. Ordered that the judgment is affirmed.