People v. Fuller

Appeal by the defendant from an amended judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered January 31, 1985, convicting him of attempted assault in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the amended judgment is reversed, on the law, the plea of guilty is vacated and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

The record demonstrates that prior to the entry of the defendant’s plea of guilty, the court promised that it would recommend that its sentence run concurrently with a term of imprisonment imposed on the defendant for a violation of parole. However, that promise was unfulfilled, inasmuch as the court lacked the power to fulfill it, and imposed its sentence to run consecutively to the time owed by the defendant for the parole violation. Under these circumstances, the defendant was entitled to withdraw his plea, and his motion to do so should have been granted (see, People v Torres, 45 NY2d 751; People v Selikoff, 35 NY2d 227, cert denied 419 US 1122; People v Declemente, 108 AD2d 868).

In view of our determination, we do not address the defendant’s remaining contention. Mangano, J. P., Bracken, Niehoff, Kooper and Spatt, JJ., concur.