Opinion
June 5, 1995
Appeal from the County Court, Nassau County (Santagata, J.).
Ordered that the judgment as amended is affirmed.
The defendant pleaded guilty to two counts of attempted criminal sale of a controlled substance in the third degree in satisfaction of all eight counts against him, in exchange for a favorable sentence (two concurrent terms of 3 1/2 to 7 years imprisonment). At sentencing the court erroneously directed that the sentence run consecutively, rather than concurrently, to a sentence of 3 to 6 years already being served by the defendant for another crime (Penal Law § 70.25 [2-a]). At the proceeding to amend the sentence, while the defendant was given the opportunity to speak, he neither requested to withdraw his plea nor protested that the new lesser, consecutive sentence imposed for the present offenses of 3 to 6 years imprisonment, was excessive.
As a general rule, "a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored" (People v Selikoff, 35 N.Y.2d 227, 241, cert denied 419 U.S. 1122; see also, People v. Torres, 45 N.Y.2d 751, 753). However, this principle is not applicable where, as here, the defendant's claim has not been preserved for appellate review and where the sentence actually imposed was not abusive or illegal (see, People v. Ifill, 108 A.D.2d 202, 203; see also, People v. Aitken, 148 A.D.2d 459, 459-460; People v. Jones, 140 A.D.2d 372; People v Burton, 133 A.D.2d 276). Sullivan, J.P., Miller, Copertino, Joy and Friedmann, JJ., concur.