Opinion
July 10, 1979
Judgment, Supreme Court, Bronx County, rendered October 11, 1977, convicting defendant of sexual abuse in the first degree and sentencing him to three and one-half to seven years, unanimously modified, on the law, to vacate the sentence, the case remanded for resentencing by a different Judge, and otherwise affirmed. The plea bargaining agreement that the prosecutor would make no sentencing recommendation was broken when, at the sentencing, he recommended the maximum sentence which the court then imposed. The People acknowledge that the interest of justice is best served by a remand for resentencing so that the agreement may be honored. "To avoid any implication that the Judge may be persuaded by the prior recommendation, such resentencing should be by a different Judge" (People v McFarland, 46 A.D.2d 616).
Concur — Birns, J.P., Sandler, Sullivan, Markewich and Lynch, JJ.