People v. Clemons , 70 A.D.2d 884 ( 1979 )

— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 5, 1977, convicting him of grand larceny in the third degree, on his plea of guilty, and sentencing him as a second felony offender to a term of imprisonment with a minimum of two years and a maximum of four years. Judgment modified, on the law, by vacating the sentence. As so modified, judgment affirmed and case remitted to Criminal Term for further proceedings in accordance herewith. The record reveals that at the sentence defendant was not afforded the opportunity to withdraw his plea when it was apparent that the sentence promise would not be fulfilled. While the lapse is understandable on the facts in this case, "It is a basis principle of our law that 'a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored’ ” (People v Torres, 45 NY2d 751, 753). Hence, the case must be remitted to allow to the defendant the opportunity to withdraw his plea, if he be so advised, in the event that the sentence promise cannot be fulfilled. Hopkins, J. P., Suozzi, Gulotta and Cohalan, JJ., concur.