Opinion
June 15, 1987
Appeal from the Supreme Court, Kings County (Heller, J.).
Ordered that the judgment is modified, on the law, and as a matter of discretion in the interest of justice, by reducing the sentence to an indeterminate term of 1 1/2 to 3 years' imprisonment; as so modified, the judgment is affirmed.
At the plea proceeding, the court promised the defendant a sentence of 1 1/2 to 3 years unless, inter alia, he professed his innocence to his probation officer prior to sentencing. At the sentencing proceeding, after reviewing the defendant's probation report, the court found that the defendant violated this condition of the sentencing promise. As a result, the defendant received a sentence of 2 to 4 years' imprisonment.
Assuming, arguendo, that the defendant asserted his innocence to the probation officer who prepared his presentence report, this fact alone does not warrant additional punishment. It was an abuse of discretion to increase the defendant's sentence on that basis alone. The sentence originally promised to the defendant should have been imposed. Mangano, J.P., Bracken, Niehoff, Kooper and Spatt, JJ., concur.