Opinion
May 27, 1975
Judgment, Supreme Court, New York County, rendered March 13, 1973, convicting defendant upon his plea of guilty of attempted manslaughter in the second degree, and sentencing him to an indeterminate term of imprisonment not to exceed three years, unanimously reversed, on the law, and the matter remanded for resentence in accordance with the original sentence promise of probation. Defendant's plea of guilty was entered upon the court's promise to impose a sentence of probation. Accordingly, although the defendant initially failed to appear for sentencing and had to be apprehended in order to obtain his subsequent appearance, he was, nevertheless, entitled to be sentenced to the term promised or an opportunity to withdraw his plea. (Santobello v New York, 404 U.S. 257; People v Selikoff, 35 N.Y.2d 227; People v Esposito, 32 N.Y.2d 921.) In the circumstances of this case, the People having demonstrated that their position has changed and that a retrial would not be possible, appellant would be given an undue benefit if he is now permitted to withdraw the plea (People v Selikoff, supra, pp 239-240; People v Esposito, supra) and accordingly, the matter is remanded for resentencing in accord with the promise of probation.
Concur — Kupferman, J.P., Murphy, Tilzer, Capozzoli and Lane, JJ.