| People v Walker |
| 2007 NY Slip Op 08658 [45 AD3d 1401] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ConstanceWalker, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered August 2,2006. The judgment convicted defendant, upon her plea of guilty, of burglary in the seconddegree and robbery in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by vacating the sentence and as modified the judgment isaffirmed, and the matter is remitted to Erie County Court for further proceedings in accordancewith the following memorandum: Defendant appeals from a judgment convicting her upon herplea of guilty of burglary in the second degree (Penal Law § 140.25 [2]) and robbery in thethird degree (§ 160.05). As part of the plea agreement, County Court stated that it wouldsentence defendant to specified terms of imprisonment. We agree with defendant that the courterred in imposing an enhanced sentence that "was—in part—expressly based upondefendant's purported violations of plea terms which were never imposed or agreed to at the pleaproceedings as conditions [of] the plea bargain and agreed-upon sentences" (People vCovell, 276 AD2d 824, 825 [2000]; see People v Sundown, 305 AD2d 1075, 1076[2003]). We therefore modify the judgment by vacating the sentence, and we remit the matter toCounty Court to impose the sentence promised or to afford defendant the opportunity towithdraw her plea (see Sundown, 305 AD2d at 1076). Present—Gorski, J.P.,Martoche, Smith, Peradotto and Green, JJ.