Opinion
March 14, 1991
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
Previously, we held this appeal in abeyance and remanded the case for a hearing on the exact nature of the off-the-record agreement between the defendant's counsel and the prosecutor ( 152 A.D.2d 469). It was the defendant's contention that in return for a plea to a prosecutor's information and a waiver of an indictment, the prosecutor agreed to recommend a sentence of probation and restitution rather than incarceration. On remand, Justice Thomas Galligan found that the defendant's contention was correct but that the agreement had not been brought to the court's attention until the sentence when the prosecutor recommended incarceration. After the hearing on the remand, the prosecutor and the defense attorney entered into a stipulation that, subject to the approval of the court, the sentence should be reduced to a period of probation and restitution. In view of the finding of the court on remand and the stipulation, a change in the sentence is appropriate.
Concur — Murphy, P.J., Sullivan, Kassal, Ellerin and Smith, JJ.