People v. Declemente

108 A.D.2d 868, 485 N.Y.S.2d 364, 1985 N.Y. App. Div. LEXIS 43195

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1985
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County (Brennan, J.), rendered April 30, 1984, convicting him of petit larceny, upon his plea of guilty, and sentencing him to six months’ imprisonment.

Judgment modified, on the law, by vacating the sentence. As so modified, judgment affirmed and case remitted to Criminal Term for further proceedings in accordance herewith.

The record reveals that at sentencing defendant was not afforded an opportunity to withdraw his plea when it was apparent that the sentence promise would not be fulfilled. “ It is a basis [sic] principle of our law that “a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” ’ ” (People v Clemons, 70 AD2d 884, citing People v Torres, 45 NY2d 751, 753; People v Grant, 99 AD2d 536).

Accordingly, we remit the case to Criminal Term, which shall impose the agreed-upon sentence or offer defendant the opportunity of withdrawing his plea. Weinstein, J. P., Brown, Niehoff and Lawrence, JJ., concur.