Although we have found no federal cases precisely on point, several state courts have held, in analogous situations, that a trial judge has no authority to vacate, sua sponte, a validly accepted guilty plea because of subsequent events which do not impugn the validity of the original plea agreement. See, e.g., Lombrano v. Superior Court, 124 Ariz. 525, 606 P.2d 15 (1980) (trial court could not sua sponte set aside guilty plea); People v. Matthews, 71 A.D.2d 864, 419 N.Y.S.2d 192, 193 (1979) (memorandum by the court) (a plea of guilty is a conviction and, in the absence of fraud, the court has no power to set aside the plea without the defendant's consent); accord People v. Hardin, 67 A.D.2d 12, 414 N.Y.S.2d 320, 322 (1979); People v. Damsky, 47 A.D.2d 822, 366 N.Y.S.2d 13 (1975) (per curiam) (trial court had no inherent authority to grant government's application and set aside defendant's plea without defendant's consent). But cf. State v. Wenzel, 306 N.W.2d 769, 771 (Iowa 1981) (trial court could reject plea agreement at time of sentencing even though court had accepted agreement if defendants allowed to withdraw guilty pleas).

In this case, the Defendants assert that the criminal conviction was encompassed in the Debtor's guilty plea before Justice Tammy Robbins. People v. Hardin, 67 A.D.2d 12, 16, 414 N.Y.S.2d 320, 322 (1st Dep't 1979). The plea, along with the entire criminal case against the Debtor, including the information, have been abated.

Further, there was no basis to sua sponte set aside the pleas over petitioner's objection. See People v. Hardin, 67 A.D.2d 12 (N.Y.S.2d 1979) (stating that, in the absence of fraud, the court may not set aside a plea without the defendant's consent). Extraordinary relief is therefore warranted under the circumstances of this case.

N.Y.C.P.L. § 1.20(13) (emphasis added). See also People v. Hardin, 67 A.D.2d 12, 16, 414 N.Y.S.2d 320, 322 (1979) (noting that a plea of guilty is a conviction). Further, the law provides that "`sentence' means the imposition and entry of sentence upon a conviction."

Other jurisdictions have uniformly held that courts do not have the authority to vacate a defendant's guilty plea over his objection. E.g., State v. De Nistor, 143 Ariz. 407, 694 P.2d 237, 242 (1985) (holding that the court may not sua sponte vacate the acceptance of a guilty plea and set the issue for trial because such an action would violate the defendant's double-jeopardy rights); People v. Hardin, 67 A.D.2d 12, 16, 414 N.Y.S.2d 320 (1979) (stating that, in the absence of fraud, the court has no power to set aside a plea without the defendant's consent); Commonwealth v. Kotz, 411 Pa.Super. 319, 601 A.2d 811, 814-15 (1992) (holding that "[a]bsent an application/motion by the defendant [to withdraw his guilty plea,] a guilty plea, which is spoken of in terms of a verdict of guilty, may not be removed by a trial court sua sponte)"; Perkins v. Court of Appeals For the Third Supreme Judicial District of Texas, 738 S.W.2d 276, 283 (Tex.Cr.App. 1987) (holding that once the district court accepted the plea of guilty and approved the plea bargain agreement, he had no power to vacate the defendant's plea over his objection). The United States Court of Appeals for the Ninth Circuit also considered the authority of a district court to vacate a defendant's guilty plea over his objection in United States v. Patterson, 381 F.3d 859 (9th Cir. 2004).

Finally, contrary to the People's contention, the defendant's subsequent plea did not constitute a forfeiture of his right to appeal the vacatur of his initial plea. The defendant's subsequent plea could not stand since the initial plea was valid and the Supreme Court had no authority to unilaterally vacate it without the defendant's consent ( see People v. Hardin, 67 A.D.2d 12, 16). Moreover, the defendant entered his subsequent plea of guilty to different charges under a different accusatory instrument, to wit, the indictment rather than the original Superior Court Information ( cf. People v. Colon, 169 A.D.2d 731; People v. Boyce, 150 A.D.2d 471; People v. Guerrero, 140 A.D.2d 456).

Upon satisfying itself that it could not legally honor the full extent of the sentencing commitment made to the defendant (see Matter of Kalamis v. Smith, 42 N.Y.2d 191; Matter of Gonzalez v. Kearney, 62 A.D.2d 345; see, also, Penal Law, § 70.30, subds 1, 3), the County Court erred in proceeding, sua sponte, to vacate the defendant's guilty plea without obtaining his consent. Upon the remand, the defendant should be afforded the opportunity of withdrawing his guilty plea or accepting a proper sentence (see People v. Matthews, 71 A.D.2d 864; People v. Hardin, 67 A.D.2d 12; People v. Ford, 65 A.D.2d 822). A promise to impose an illegal sentence will not be specifically enforced (see People v. Selikoff, 35 N.Y.2d 227, 238, 241, cert den 419 U.S. 1122; People v. McClinton, 43 A.D.2d 930; Matter of Midgley v. Smith, 63 A.D.2d 223; Matter of Vogler v Smith, 64 A.D.2d 824; Palermo v. Warden, Green Haven State Prison, 545 F.2d 286, cert dsmd 431 U.S. 911; People v. Fonville, 68 A.D.2d 916; People v. Craig, 41 A.D.2d 932). Damiani, J.P., Lazer, Gulotta and Margett, JJ., concur.

A plea of guilty is a conviction (CPL 1.20, subd 13) and in the absence of fraud the court had no power to set aside the plea without the defendant's consent. The "fraud" involved here, i.e., the extent of defendant's criminal background, was in fact contemplated by the court at the time it accepted the pleas of guilty to both indictments, and the court explicitly stated the consequences of such fraud — that it would give the defendant an option to withdraw the plea and have the indictment reinstated (see People v. Hardin, 67 A.D.2d 12). Accordingly, defendant's conviction on the pleas of guilty must be reinstated and defendant remanded for resentence.

Under New York law, a finding of guilt by jury verdict or court decision or the entry of a plea of guilty is a conviction. (CPL 1.20, subd 13; see, also, People v Hardin, 67 A.D.2d 12.) Petitioner suggests that the closest New York analogy to the Florida procedure is the probation sentencing of a narcotic addict under section 65.00 and former subdivision 4 of section 65.20 Penal of the Penal Law.