Opinion
October 15, 1974
Judgment, Supreme Court, New York County, rendered August 21, 1973, insofar as it imposes sentence, unanimously reversed on the law, and the case remanded to the Criminal Term of the Supreme Court, New York County, for resentencing, and otherwise affirmed. The record indicates and the People concede that the sentencing court imposed a term of imprisonment in excess of that agreed upon in the plea bargaining. The understanding had been, based on the People's recommendation, that a term of up to four years imprisonment would be imposed. However, while on parole in a narcotics treatment center pending sentencing, the appellant absconded, and a bench warrant had to be issued and the parole was revoked. At the sentencing, the People erroneously informed the court that no sentence promise had been made. In view of the defendant's record and the fact that he broke his parole, the Judge imposed a sentence of up to seven years' imprisonment. The reversal and remand for resentencing is required in accordance with the sentence promised. ( Santobello v. New York, 404 U.S. 257; People v. Esposito, 32 N.Y.2d 921; People v. McFarland, 46 A.D.2d 616.) If the breaking of parole is to be taken into account, then it is for other proceedings and not for this sentencing.
Concur — McGivern, P.J., Markewich, Kupferman, Lupiano and Lane, JJ.