Opinion
March 8, 1996
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Green, J.P., Lawton, Fallon, Doerr and Balio, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: In exchange for Supreme Court's promise to continue defendant on probation pending sentencing, defendant agreed to admit that he violated probation. The court also promised to sentence defendant to continued probation as long as defendant, pending sentencing, regularly attended meetings of Alcoholics Anonymous and reported to his Probation Officer. The court indicated that, if defendant violated either condition, it would impose a term of imprisonment of 1 to 3 years.
Prior to sentencing, the court noted that defendant's Probation Officer had informed the court that defendant had not regularly reported as required by the bargain. At sentencing, the prosecutor indicated his "understanding" that defendant had failed to report. Defense counsel, however, stated that defendant had reported on each date, as directed by the Probation Officer. The court failed to conduct further inquiry to satisfy itself that defendant had violated that condition of the bargain ( see, CPL 400.10; People v Faulkner, 182 A.D.2d 1025, lv dismissed 80 N.Y.2d 830; cf., People v Outley, 80 N.Y.2d 702, 713), and made no finding that defendant violated either condition of the plea bargain, but the court nevertheless imposed a term of imprisonment of 1 to 3 years. Because the court failed to sentence defendant in accordance with its promise, we modify the judgment by vacating the sentence, and we remit the matter to Supreme Court to afford defendant the opportunity to withdraw his plea; if the court refuses to permit withdrawal of the plea, the plea bargain must be enforced and probation continued ( see, People v Selikoff, 35 N.Y.2d 227, 241, cert denied 419 U.S. 1122; People v Sampson, 214 A.D.2d 1033; People v Shabazz, 203 A.D.2d 947). Because we vacate the sentence, we do not consider the contentions that the sentence is harsh or excessive and that the sentencing court failed to consider defendant's successful completion of several conditions of probation before imposing sentence.