Opinion
June 18, 1990
Appeal from the County Court, Nassau County (Orenstein, J.).
Ordered that the resentence, as amended, is modified, on the law, by deleting the provision that certain of the sentences shall run consecutively and substituting therefor a provision that all of the sentences shall run concurrently to one another; as so modified, the resentence is affirmed.
The court was without authority to vacate the sentence imposed February 24, 1988, upon the failure of the defendant to keep his promise to testify truthfully at the codefendant's trial (CPL 430.10; Matter of Campbell v. Pesce, 60 N.Y.2d 165; see also, Matter of Kisloff v. Covington, 73 N.Y.2d 445). The People's reliance on Matter of Lockett v. Juviler ( 65 N.Y.2d 182), is misplaced. That case merely reiterated the general principle that the courts possess the inherent power to vacate orders and judgments obtained by fraud or misrepresentation both in civil and in criminal cases. The action of the defendant herein did not come within this exception since a failure to perform a future act cannot be a predicate for a claim of fraud (see, New York Fruit Auction Corp. v. City of New York, 81 A.D.2d 159).
Accordingly, the resentence must be vacated and the original sentence, imposed February 24, 1988, reinstated to the extent that the original sentence provided that all sentences shall run concurrently to one another. Kunzeman, J.P., Harwood, Balletta and O'Brien, JJ., concur.