Opinion
September 25, 1995
Appeal from the County Court, Suffolk County (Weissman, J.).
Ordered that the judgment is modified, on the law, by reducing the sentence imposed for buglary in the second degree to an indeterminate term of 4 to 8 years imprisonment; as so modified, the judgment is affirmed.
At the plea proceeding on April 15, 1994, the court made a "conditional" promise to the defendant of an indeterminate term of 4 to 8 years imprisonment on the conviction of burglary in the second degree. The court, however, did not set forth any specific conditions of its sentencing promise. At the sentencing proceeding, the court refused to keep its promise, solely on the basis that the defendant professed his innocence of the charged crimes to the probation officer who prepared his presentence report. Even if the defendant asserted his innocence, as alleged, this fact alone does not warrant additional punishment. Therefore, the court improvidently exercised its discretion in imposing the enhanced sentence (see, e.g., People v Stennett, 207 A.D.2d 847; People v Raffaele, 199 A.D.2d 545; People v Daniels, 132 A.D.2d 667; People v Brunson, 131 A.D.2d 689). Bracken, J.P., Rosenblatt, Krausman and Goldstein, JJ., concur.