Opinion
December 30, 1992
Appeal from the Livingston County Court, Cicoria, J.
Present — Callahan, J.P., Pine, Lawton, Boehm and Fallon, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Livingston County Court for further proceedings in accordance with the following Memorandum: During the course of plea negotiations, defendant agreed to enter a plea of guilty to burglary in the second degree (Penal Law § 140.25 [a]) in return for which he would be sentenced as a second felony offender to an indeterminate term of imprisonment with a maximum of 8 years and a minimum of 4 years. At the time of sentencing, in the absence of any application by the People and without a hearing, the sentencing court imposed the agreed upon sentence and further ordered defendant to pay restitution in the total sum of $2,925.57 (see, Penal Law § 60.27). That was error. Because the sentence imposed was more severe than that bargained for, we modify the judgment by vacating the sentence, and remit the matter to the sentencing court to impose the sentence promised or to afford defendant the opportunity to withdraw his plea of guilty (see, People v Knapp, 176 A.D.2d 1191, 1192; People v Scrivens, 175 A.D.2d 671, 672).