Contrary to defendant's contention, we do not find that the testimony of the arresting officer was incredible as a matter of law (see, People v. Garafolo, 44 A.D.2d 86, 88). A discrepancy between the officer's testimony that, at the time of arrest, defendant was wearing a tan trench coat and a red baseball cap, and, a post-arrest photograph taken by that officer of defendant 18 hours later, while defendant was in the custody of the Department of Correction, indicating that defendant was wearing a black trench coat and a baseball cap with a red insignia in the front of it, is insufficient to require reversal of the hearing court's determination of facts and credibility, since the defendant had an opportunity to switch garments outside the arresting officer's absence.
We reject defendant's argument that the sentence is excessive. Since defendant did not fulfill the negotiated plea condition, that he return to court for sentence, the court was no longer bound by its original conditional sentence promise, and we find that the instant sentence is not excessive (People v. Fields, 197 A.D.2d 633, lv denied 82 N.Y.2d 894).
Concur — Rosenberger, J.P., Wallach, Kupferman, Asch and Tom, JJ.