Opinion
March 10, 1989
Appeal from the Ontario County Court, Reed, J.
Present — Dillon, P.J., Boomer, Green, Pine and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The sentencing court properly set aside defendant's sentence to lifetime probation. Thereafter, defendant was resentenced to a term of three years' to life imprisonment. The sentence first imposed was invalid as a matter of law because the prosecutor failed to recommend "either orally on the record or in a writing filed with the indictment" that defendant be sentenced to a period of probation (Penal Law § 65.00 [b]; see, People v. David, 65 N.Y.2d 809; People v Eason, 40 N.Y.2d 297). There is no merit to defendant's argument that the required recommendation may be inferred from the plea proceeding or that the prosecutor implied the same at sentencing.