Opinion
September 19, 1994
Appeal from the Supreme Court, Kings County (Feinberg, J.).
Ordered that the sentence is modified, on the law, by reducing the term of imprisonment imposed in connection with the defendant's conviction of criminal possession of a weapon in the second degree to 2 1/3 years to 7 years; as so modified, the sentence is affirmed.
As part of a plea agreement, the court promised the defendant concurrent indeterminate terms of imprisonment of 2 1/3 to 7 years in connection with the three counts to which he pleaded guilty. However, at sentencing, the court imposed a term of imprisonment of 4 to 12 years in connection with the defendant's conviction of criminal possession of a weapon in the second degree because the defendant had allegedly asserted his innocence of that crime to the probation officer who prepared his presentence report.
As the People concede, the court improvidently exercised its discretion in imposing an enhanced sentence based solely upon the defendant's alleged assertions of innocence to the probation officer who prepared his presentence report (see, People v Raffaele, 199 A.D.2d 545; People v. Carr, 135 A.D.2d 722, 723; People v. Daniels, 132 A.D.2d 667; People v. Brunson, 131 A.D.2d 689; see also, People v. Poole, 202 A.D.2d 450; People v. Mojica, 197 A.D.2d 642; People v. Prescott, 196 A.D.2d 599, 600). Accordingly, the sentence is modified by reducing the term of imprisonment of 4 to 12 years to 2 1/3 to 7 years as originally promised by the court as part of the plea agreement. Mangano, P.J., Thompson, Sullivan, O'Brien and Hart, JJ., concur.