On the motion to vacate his conviction and sentence, the defendant, by his affidavit and that of counsel, asserts that, off the record, the prosecutor promised that in exchange for the defendant's plea to the prosecutor's information and waiver of the indictment, the District Attorney's office would recommend probation and restitution as opposed to incarceration. Defendant further claims that at the time of the offer, the District Attorney was aware of his conviction in Texas of embezzlement. At sentencing on this matter, the Assistant District Attorney recommended that the defendant be sentenced to a period of incarceration.
While an Assistant District Attorney, in opposition to the defendant's postjudgment motion, admits that an offer was made, she states that the offer was conditioned upon the defendant's representation that he had not been "convicted" of the offense in Texas, a representation upon which she relied until an FBI report on the defendant was received.
Failure of a prosecutor to honor an off-the-record promise as to a sentence recommendation renders invalid a guilty plea which was induced by such promise. "[T]he failure or inability to fulfill a promise requires either that the plea of guilty be vacated or the promise fulfilled" (People v Selikoff, 35 N.Y.2d 227, 239, cert denied 419 U.S. 1122).
Thus, the matter is remanded for a hearing to determine the express nature of the agreement between the defendant's counsel and the prosecutor.
Concur — Murphy, P.J., Sullivan, Kassal, Ellerin and Smith, JJ.