People v. Nunez

248 A.D.2d 561, 669 N.Y.S.2d 881, 1998 N.Y. App. Div. LEXIS 2524

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Koch, J.), rendered September 21, 1995, convicting him of attempted robbery in the first degree, upon his plea of guilty, and sentencing him to an indeterminate term of 6 to 12 years imprisonment.

Ordered that the judgment is modified, on the law, by reducing the sentence imposed to an indeterminate term of 4 to 8 years imprisonment; as so modified, the judgment is affirmed.

Although the court may enhance a defendant’s sentence when he or she breaches a condition of a plea agreement (see, People v Figgins, 87 NY2d 840; People v Avery, 85 NY2d 503, 506-507; People v Outley, 80 NY2d 702; People v Davis, 239 AD2d 356), the defendant did not breach a condition of the plea agreement (see, People v Auslander, 146 AD2d 936, 937). The fact that the defendant subsequently moved to vacate his plea by making allegations which were at variance with his plea admissions was not a proper ground under the terms of the plea agreement for enhancing the originally agreed-upon sentence (cf, People v Spina, 186 AD2d 9, 10; People v Carr, 135 AD2d 722; People v Brunson, 131 AD2d 689, 690).

Thompson, J. P., Sullivan, Florio and McGinity, JJ., concur.