Opinion
May 28, 1979
Appeal by defendant from four judgments of the Supreme Court, Kings County, each rendered December 14, 1976, convicting him of two counts of robbery in the first degree (under Indictment Nos. 1793/76 and 1794/76), burglary in the second degree (under Indictment No. 1999/76), and burglary in the third degree (under Indictment No. 1998/76), upon his pleas of guilty, and imposing sentences. Judgments rendered under Indictment Nos. 1793/76, 1999/76 and 1998/76 affirmed. No opinion. Judgment rendered under Indictment No. 1794/76 modified, on the law, by vacating the sentence imposed thereon. As so modified, judgment affirmed, and the case is remitted to Criminal Term for further proceedings in accordance herewith. At the time defendant pleaded to the charges under Indictment No. 1794/76 the court stated that it would impose a maximum sentence of 16 years (with a minimum sentence as prescribed by law) if, after having read the presentence investigation report, it could do so in good conscience. Defendant was told that if the court could not impose the sentence promised in good conscience, the defendant would be given the opportunity to withdraw his plea. At the time of sentencing the court imposed a sentence of 6 to 18 years with respect to Indictment No. 1794/76. No explanation was tendered, nor was any reference made to the promise given at plea. It is settled law that "the failure or inability to fulfill a promise requires either that the plea of guilty be vacated or the promise fulfilled" (People v. Selikoff, 35 N.Y.2d 227, 239, cert den 419 U.S. 1122; see People v. Ransom, 55 A.D.2d 980). Accordingly, on remand, Criminal Term may either (a) impose a sentence of 5 1/3 to 16 years, or (b) give defendant the opportunity to withdraw his plea in the event the court cannot, in good conscience, impose a sentence of less than 6 to 18 years imprisonment. Damiani, J.P., Cohalan, Margett and Martuscello, JJ., concur.