Opinion
June 1, 1992
Appeal from the County Court, Westchester County (Rosato, J.).
Ordered that the judgments are affirmed.
The sole issue raised on this appeal is whether the court properly denied the defendant's motion to withdraw his pleas of guilty. Those pleas were knowingly and voluntarily made after the court had fully apprised him of the consequences (see, People v Harris, 61 N.Y.2d 9).
We find no support for the defendant's contention that the prosecution reneged on a promise to recommend an even lighter term of imprisonment at sentencing than the favorable one promised him at the time of the plea agreement. The "promise" upon which the defendant relies was not an unconditional commitment. It was contingent upon the defendant's continuing cooperation with law enforcement authorities and his remaining free of any further criminal activity. In view of his rearrest prior to sentencing and the contentions of an Assistant District Attorney, made on the record, that the defendant's cooperation had ceased, the court had no reason to believe that the People's decision not to recommend a lesser term of imprisonment was improperly motivated. Indeed, at the plea agreements the court itself had not made a flat promise to accept whatever the People recommended, but had agreed only to consider a sentence more favorable than that agreed to at the time of the plea agreement if the People recommended a more favorable sentence. Under these circumstances it cannot be said that the defendant's pleas were induced by a firm promise which was breached (cf., Santobello v. New York, 404 U.S. 257; People v. Powell, 105 A.D.2d 761). Therefore, the court did not improvidently exercise its discretion in denying, without a hearing, the defendant's application to withdraw the pleas of guilty (see, CPL 220.60; People v. Frederick, 45 N.Y.2d 520, 526; People v. Pettway, 140 A.D.2d 721; People v Kafka, 128 A.D.2d 895). Harwood, J.P., Balletta, Rosenblatt and Copertino, JJ., concur.