People v. Bushey , 75 A.D.2d 910 ( 1980 )

Appeal from a judgment of the County Court of Franklin County, rendered July 5, 1979, convicting defendant upon his plea of guilty of the crime of rape in the first degree. Defendant was indicted for commission of the crimes of rape in the first degree, sodomy in the first degree (two counts), and sexual abuse in the first degree. As part of a plea bargain made between the defendant’s attorney and the District Attorney, the District Attorney agreed not to prosecute the latter two counts of the indictment or certain other potential charges. He also agreed not to make any recommendation as to sentence. However, at sentencing the prosecutor asked the court to give defendant the maximum permissible sentence. Defense counsel immediately called the broken promise to the prosecutor’s and the court’s attention. The prosecutor thereupon apologized, but the court nevertheless proceeded to sentence the defendant to the maximum allowable sentence. This was error. In such circumstances, the sentence should be vacated, and the matter remitted for resentencing before a different Judge so that the promise may be fulfilled (Santobello v New York, 404 US 257; People v Young, 71 AD2d 582; cf. People v Chadwick, 33 AD2d 687). Judgment modified, on the law, by vacating the sentence; matter remitted to the County Court of Franklin County for resentencing before a different Judge, and, as so modified, affirmed. Mahoney, P.J., Greenblott, Main, Mikoll and Casey, JJ., concur.