People v. Pistone

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hellenbrand, J.), rendered February 23, 1982, convicting him of conspiracy in the second degree and conspiracy in the fourth degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Prior to trial, the defendant had entered a plea of guilty to both counts of the indictment before Justice Feldman, who promised that the sentence imposed would be concurrent indeterminate terms of imprisonment of 1 to 3 years. This sentence promise was conditioned upon the sentence being found appropriate after a review of a presentence report and certain tapes that constituted evidence in the case. The record further discloses that thereafter the court could not adhere to the promised sentence based upon the information contained in the tapes and it determined that an appropriate sentence would be 7 to 21 years. The defendant’s subsequent motion to withdraw his plea of guilty was granted, his plea was vacated, and the case proceeded to trial.

We find that the court properly determined that it could not abide by its sentence promise. Accordingly, the defendant was appropriately given the opportunity to either accept the sentence which the court deemed appropriate or withdraw his plea (see, People v Grant, 99 AD2d 536). The defendant was not entitled to imposition of the original promised sentence (see, People v Grant, supra; cf. People v Rogers, 56 NY2d 552; People v Hamil, 110 AD2d 659). Gibbons, J. P., Brown, Lawrence and Kooper, JJ., concur.