Opinion
June 17, 1985
Appeal from the County Court, Suffolk County (Mullen, J.).
Judgment affirmed.
Defendant contends that the County Court erred by not affording him an opportunity to withdraw his plea of guilty before imposing a higher sentence than that originally negotiated in the plea agreement. Although that is the usual rule ( Santobello v. New York, 404 U.S. 257), it does not apply to the instant case. Taken as a whole, the record indicates the clear intent of the court to condition the promised sentence upon the defendant's appearance on the date scheduled for sentencing. Because defendant absconded and failed to appear on the scheduled date, the court was no longer bound by its promise and was free to impose a higher sentence ( see, People v. Innes, 111 A.D.2d 356; People v McDaniels, 111 A.D.2d 876; People v. Davis, 106 A.D.2d 657; People v. Chevalier, 92 A.D.2d 944). Lazer, J.P., Gibbons, O'Connor and Brown, JJ., concur.