People v. Poole , 608 N.Y.S.2d 502 ( 1994 )

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Grajales, J.), rendered December 16, 1991, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is reversed on the law, the plea is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment.

The defendant’s waiver of his right to appeal was conditioned on the premise that the sentence which would ultimately be imposed was the promised sentence. Because the court ultimately imposed a harsher sentence than that promised, we conclude that the waiver should not be enforced (see, People v Prescott, 196 AD2d 599).

The record further indicates that the court failed to comply with its promise to allow the defendant, inter alia, to withdraw his plea of guilty if it determined that the information contained in the presentence report warranted the imposition of a harsher sentence. Therefore, the defendant’s guilty plea must be vacated. Rosenblatt, J. P., Ritter, Friedmann and Krausman, JJ., concur.