Opinion
December 21, 1987
Appeal from the Supreme Court, Kings County (Goldman, J.).
Ordered that the judgment under indictment No. 1112/83 is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith; and it is further,
Ordered that the judgment under indictment No. 4033/82 is affirmed.
With respect to the conviction under indictment No. 4033/82, although several comments by the prosecutor in summation were improper, any errors were harmless in view of the overwhelming proof of the defendant's guilt (see, People v Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837; People v Galloway, 54 N.Y.2d 396). Additionally, contrary to the defendant's contention, the court's charge as to evaluation of identification testimony was proper. The sentence imposed under indictment No. 4033/82 was not excessive and does not warrant modification.
The judgment under indictment No. 1112/83 must be modified. The court sentenced the defendant to a greater sentence than that promised at the time of the plea. Inasmuch as the court failed to provide the defendant with the opportunity to withdraw his plea, or to accept the greater sentence, the defendant must be given the opportunity, if he be so advised, to withdraw the plea (cf., People v Pittman, 129 A.D.2d 592, lv denied 70 N.Y.2d 716; People v Grant, 99 A.D.2d 536). Mangano, J.P., Lawrence, Weinstein and Rubin, JJ., concur.