People v. Scott , 72 A.D.2d 754 ( 1979 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 1, 1977, convicting him of manslaughter in the first degree, upon his plea of guilty, and sentencing him as a second felony offender to an indeterminate term of imprisonment of from 1214 to 25 years. Judgment modified, on the law, by reducing the sentence to an indeterminate term of imprisonment of from 814 to 16% years. As so modified, judgment affirmed. Defendant was originally promised a sentence of 814 to 25 years in exchange for his guilty plea. After being adjudged a second felony offender, a sentence of 1214 to 25 years was imposed. A guilty plea induced by an unfulfilled promise must either be vacated or the promise honored (People v Selikoff, 35 NY2d 227). However, giving defendant the option to withdraw his plea would be prejudicial to the People since one of their principal witnesses is now deceased. Thus the sentence must be reduced to 814 to 16% years, which is the maximum term consonant with both subdivision 4 of section 70.06 of the Penal Law, mandating a two to one ratio between the maximum and minimum of an indeterminate term of imprisonment accorded a second felony offender, and the terms of the original plea bargain. Mangano, J. P., Rabin, Margett and Martuscello, JJ., concur.