People v. Craig

41 A.D.2d 932, 343 N.Y.S.2d 365, 1973 N.Y. App. Div. LEXIS 4530

Opinion

Appeal by defendant from a judgment of the Supreme Court, Suffolk County, rendered November 5, 1971, convicting him of attempted burglary in the third degree, upon a plea of guilty, and sentencing him to a five-year term of probation. Judgment reversed as to the sentence, on the law and as a matter of discretion in the interest of justice, and otherwise affirmed, and case remanded to the Criminal Term for resentence in accordance with the views set forth herein. At the time defendant withdrew his plea of not guilty and entered a plea of guilty to the crime for which he was convicted, the court unconditionally promised that defendant would receive a one-year sentence, to run concurrently with the sentence he was then serving. However, on the date of sentencing the court reconsidered its promise, denied defendant’s application to withdraw his guilty plea and placed him on probation for five years. It is clear that under these circumstances defendant should have been sentenced as promised or accorded the opportunity to withdraw his guilty plea (Santobello v. New York, 404 U. S. 257). However, in view of the passage of time and, on the entire record herein, we are of the opinion that the interests of justice would best be served by remanding the case for resentence in accordance with the promise made (cf. People v. Selikoff, 41 A D 2d 376). Rabin, P. J., Hopkins, Munder, Martuscello and Shapiro, JJ., concur.