Opinion
December 27, 1993
Appeal from the Supreme Court, Richmond County (Garry, J.).
Ordered that the judgment imposed under Indictment No. 410/90 is modified, on the law, by reducing the sentence to an indeterminate term of 2 to 4 years imprisonment; as so modified, the judgment is affirmed; and it is further,
Ordered that the judgment imposed under Indictment No. 207/91 is affirmed.
At the plea proceeding under Indictment No. 410/90, the court promised the defendant an indeterminate sentence of 2 to 4 years imprisonment. At the sentencing proceeding, after reviewing the defendant's probation report, which indicated that the defendant professed his innocence to his probation officer, the defendant was sentenced to an indeterminate term of 3 to 6 years imprisonment.
Assuming, arguendo, that the defendant asserted his innocence to the probation officer who prepared his pre-sentence report, this fact alone does not warrant additional punishment. It was an abuse of discretion to increase the defendant's sentence on that basis alone. The sentence under Indictment No. 410/90 originally promised to the defendant should have been imposed (see, People v Brunson, 131 A.D.2d 689; People v Daniels, 132 A.D.2d 667). Mangano, P.J., Bracken, Rosenblatt, Pizzuto and Joy, JJ., concur.