Judgment, Supreme Court, New York County, rendered April 20, 1972, sentencing defendant-appellant to probation for five years, unanimously reversed, on the law, the sentence vacated, and the case remanded to that court for further proceedings as hereinafter set forth. At the time of defendant's plea of guilty, the court made a clear and unequivocal promise that defendant would be sentenced to time served, without probation, adding that should the probation report prevent fulfillment of the promise, the plea might be withdrawn. On the day of sentence, the court found the report unsatisfactory, and sentenced as above stated, without mentioning the alternative branch of the promise, withdrawal of the plea. Nor did defendant nor counsel say anything on the subject. Defendant's silence, as the District Attorney commendably concedes, was not a waiver ( People v. Esposito, 32 N.Y.2d 921), and defendant is entitled to performance of the promise ( Santobello v. New York, 404 U.S. 257). The case is remanded accordingly and defendant shall have the option of deciding which alternative he will select: withdrawal of the plea, or sentence to time served.
Concur — McGivern, P.J., Markewich, Murphy and Tilzer, JJ.