Opinion
January 30, 1995
Appeal from the Supreme Court, Queens County (Linakis, J.).
Ordered that the sentence is affirmed.
The defendant pleaded guilty to burglary in the first degree and attempted burglary in the first degree with the understanding that if he appeared for sentencing, the burglary in the first degree count would be dismissed and he would be sentenced to an indeterminate term of 5 to 10 years imprisonment for attempted burglary in the first degree. The defendant was advised, however, that if he failed to appear for sentencing, he would receive a sentence of an indeterminate term of 12 1/2 to 25 years imprisonment for burglary in the first degree. The defendant did not appear at sentencing, and the court imposed the enhanced sentence.
Although the defendant waived his right to appeal, the waiver should not be enforced, inasmuch as it was conditioned on the imposition of a sentence of an indeterminate term of 5 to 10 years imprisonment for attempted burglary in the first degree (see, People v. Prescott, 196 A.D.2d 599).
Upon review, however, we find no basis to disturb the sentence imposed. The defendant was aware of the consequences of his failure to appear for sentencing (see, People v. Kazepis, 101 A.D.2d 816), and under the circumstances of this case, the disparity between the promised sentence for attempted burglary in the first degree and the sentence ultimately imposed for burglary in the first degree does not render the latter unduly harsh (cf., People v. Figueroa, 186 A.D.2d 146). Mangano, P.J., Rosenblatt, Miller, Copertino and Krausman, JJ., concur.