Opinion
February 4, 1980
Appeal by defendant from two judgments of the Supreme Court, Kings County, each rendered April 23, 1976, (1) the first convicting him of robbery in the first degree (Indictment No. 4373/75) upon a jury verdict, and (2) the second convicting him of robbery in the first degree (Indictment No. 4372/75) upon his plea of guilty, and imposing sentences. Judgment with respect to Indictment No. 4373/75 affirmed. Judgment with respect to Indictment No. 4372/75 reversed, as a matter of discretion in the interest of justice, plea vacated, and action remitted to Criminal Term for further proceedings consistent herewith. After the jury had rendered a verdict convicting defendant of robbery in the first degree (Indictment No. 4373/75), but before sentence was imposed, the trial court participated in plea negotiations with respect to Indictment No. 4372/75. The court noted, on the record, that if defendant proceeded to trial on Indictment No. 4372/75, it would impose an indeterminate prison term of from 7 1/2 to 15 years for his conviction with respect to Indictment No. 4373/75. However, the court promised that if defendant pleaded guilty to robbery in the first degree in satisfaction of Indictment No. 4372/75 it would impose an indeterminate term of imprisonment of from 4 1/2 to 9 years on each conviction, to run concurrently with each other. Defendant pleaded guilty to robbery in the first degree in satisfaction of Indictment No. 4372/75 and the promised sentences were imposed. A defendant may not be induced to plead guilty by the explicit threat of a heavier sentence should he choose to proceed to trial (see People v Granello, 18 N.Y.2d 823; People v. Glasper, 14 N.Y.2d 893; People v. McCoy, 41 A.D.2d 743). Consequently, the plea must be vacated. We have considered defendant's remaining contentions and find them to be without merit. Mangano, J.P., Rabin, Gulotta and Margett, JJ., concur.