People v. Watkins , 751 N.Y.S.2d 813 ( 2002 )

—Appeal from a judgment of Niagara County Court (Broderick, Sr., J.), entered October 26, 2001, which revoked defendant’s probation and imposed a sentence of imprisonment.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law and as a matter of discretion in the interest of justice by vacating the sentence and imposing a term of imprisonment of six months and as modified the judgment is affirmed.

Memorandum: We agree with defendant that he was deprived of the benefit of his agreement to waive a hearing and admit to allegations that he violated the terms and conditions of probation. On the date scheduled for the hearing, County Court stated on the record that it had indicated to defense counsel that it would sentence defendant “to six months for the violation of probation and upon release * * * [defendant] would be then placed in a[n] inpatient treatment facility.” The court then asked defendant whether he wished to waive a hearing, admit that he violated the terms and conditions of probation and “accept that sentence,” and defendant replied that he wished to do so. At sentencing, however, the court stated that it had not committed to a sentence and sentenced defendant to a term of imprisonment of lVs to 4 years. Because defendant has been imprisoned for a period of time far in excess of his promised sentence, “relegating [defendant] to the remedy of vacatur of his plea cannot restore him to the status quo ante, and [we conclude that] he should therefore receive the benefit of his bargain” (People v Danny G., 61 NY2d 169, 175-176; see People v McConnell, 49 NY2d 340, 347-348). We therefore modify the judgment by vacating the sentence, and we exercise our power to modify the sentence as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]) by imposing a term of imprisonment of six months. Present — Pine, J.P., Wisner, Scudder, Kehoe and Burns, JJ.