                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 22, 2015                     106025
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

JAMIL A. MUHAMMAD,
                    Appellant.
________________________________


Calendar Date:    September 14, 2015

Before:    Egan Jr., J.P., Rose, Devine and Clark, JJ.

                               __________


     Frank A. Sarat, Homer, for appellant.

      Gerald F. Mollen, District Attorney, Binghamton (Joann Rose
Parry of counsel), for respondent.

                               __________


Rose, J.

      Appeal from a judgment of the County Court of Broome County
(Smith, J.), rendered July 2, 2013, convicting defendant upon his
plea of guilty of the crime of falsifying business records in the
first degree.

      Defendant pleaded guilty to one count of falsifying
business records in the first degree in satisfaction of a
two-count indictment and other pending and potential charges.
When the plea was entered, County Court agreed to impose a prison
sentence of 1½ to 3 years and made further assurances that it
would order defendant into a shock incarceration program (see
Correction Law § 865 [2]). Defendant was later sentenced, as a
second felony offender, to a prison term of 1½ to 3 years. At
sentencing, however, the court stated that it opposed shock
                              -2-                106025

incarceration and refused to order it, giving rise to this
appeal.

      Defendant argues that his plea was involuntary because it
was induced by County Court's unfulfilled promise to order that
he be admitted into a shock incarceration program and that the
court improperly imposed a sentence in violation of the plea
agreement. Although defendant failed to preserve this argument
by making an appropriate postallocution motion (see People v
Neithardt, 127 AD3d 1502, 1503 [2015]; People v Smith, 123 AD3d
1375, 1376 [2014], lv denied 26 NY3d 935 [2015]), we will
exercise our discretion to take corrective action in the interest
of justice (see CPL 470.15 [6]).

      We start with the principle that a trial court always
"retains discretion in fixing an appropriate sentence up until
the time of sentencing" (People v Schultz, 73 NY2d 757, 758
[1988]). However, when the court wishes to depart from a
promised sentence, it must either honor the promise or give the
defendant the opportunity to withdraw the guilty plea (see People
v McConnell, 49 NY2d 340, 346 [1980]; People v Selikoff, 35 NY2d
227, 241 [1974], cert denied 419 US 1122 [1975]). Accordingly,
"[a] guilty plea induced by an unfulfilled promise either must be
vacated or the promise honored" (People v Collier, 22 NY3d 429,
433 [2013], cert denied ___ US ___, 134 S Ct 2730 [2014]
[internal quotation marks and citation omitted]).

      Here, prior to defendant's guilty plea, County Court
indicated its belief that defendant was eligible for shock
incarceration and then unequivocally promised that it "would
order him into it." When defendant specifically asked if shock
incarceration was guaranteed, the court stated that it "would
order it absolutely" and that a failure on the part of prison
authorities to admit him would "defy an order of the [c]ourt."
Furthermore, defense counsel stated that he was recommending that
defendant accept the plea agreement "especially with a shock
commitment." Thus, regardless of the fact that "neither County
Court nor the People possessed the authority to guarantee
[defendant's] participation" in the shock incarceration program
(People v Vanguilder, 32 AD3d 1110, 1110-1111 [2006], lv denied 7
NY3d 904 [2006]; accord People v Benson, 100 AD3d 1108, 1109 n
                              -3-                  106025

[2012]; People v Taylor, 284 AD2d 573, 574 [2001], lv denied 96
NY2d 925 [2001]), the record reflects that defendant, in
accepting the plea, relied upon County Court's promise to do
exactly that. Consequently, we find that defendant's plea was
not knowing, voluntary and intelligent, and that, because County
Court's promise to defendant cannot be honored as a matter of
law, he is entitled to vacatur of his guilty plea (see People v
Wiggins, 126 AD3d 1229, 1230-1231 [2015]; compare People v
Benson, 100 AD3d at 1109; People v Williams, 84 AD3d 1417,
1417-1418 [2011], lv denied 17 NY3d 863 [2011]; People v
Vanguilder, 32 AD3d at 1110-1111).

     Egan Jr., J.P., Devine and Clark, JJ., concur.



      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of Broome County for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
