Opinion
March 9, 1998
Appeal from the Supreme Court, Kings County (Koch, J.).
Ordered that the judgment is modified, on the law, by reducing the sentence imposed to an indeterminate term of 4 to 8 years imprisonment; as so modified, the judgment is affirmed.
Although the court may enhance a defendant's sentence when he or she breaches a condition of a plea agreement ( see, People v. Figgins, 87 N.Y.2d 840; People v. Avery, 85 N.Y.2d 503, 506-507; People v. Outley, 80 N.Y.2d 702; People v. Davis, 239 A.D.2d 356), the defendant did not breach a condition of the plea agreement ( see, People v. Auslander, 146 A.D.2d 936, 937). The fact that the defendant subsequently moved to vacate his plea by making allegations which were at variance with his plea admissions was not a proper ground under the terms of the plea agreement for enhancing the originally agreed-upon sentence ( cf., People v. Spina, 186 A.D.2d 9, 10; People v. Carr, 135 A.D.2d 722; People v. Brunson, 131 A.D.2d 689, 690).
Thompson, J. P., Sullivan, Florio and McGinity, JJ., concur.