Opinion
April 17, 1989
Appeal from the Supreme Court, Kings County (O'Brien, J.).
Ordered that the sentence is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for resentencing.
The sentencing court erroneously concluded that it was without the power or discretion to consider the defendant's request for a more lenient sentence than that agreed upon during the plea negotiations. Accordingly, the matter must be remitted to the Supreme Court, Kings County, for resentencing (see, People v Farrar, 52 N.Y.2d 302; People v. Montoya, 138 A.D.2d 528; People v Cabeza, 135 A.D.2d 549; People v. Martinez, 124 A.D.2d 505). The court at resentencing may entertain an application by the People to withdraw consent to the plea in the event a sentence less severe than that negotiated is to be imposed. Our holding is not, however, to be construed as a determination that the sentence originally imposed was excessive. Thompson, J.P., Kunzeman, Eiber, Spatt and Balletta, JJ., concur.