PEOPLE v. BURNS (2001)

Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (Spinner, J.), imposed August 20, 1999, upon his conviction of sexual abuse in the first degree and rape in the third degree, upon his plea of guilty, the sentence being concurrent indeterminate terms of 3-1/2 to 7 years imprisonment and 1-1/3 to 4 years imprisonment, respectively.

ORDERED that the sentence is modified, on the law, by reducing the term of imprisonment imposed on the defendant's conviction of sexual abuse in the first degree from 3-1/2 to 7 years imprisonment to 3 to 6 years imprisonment;  as so modified, the sentence is affirmed.

The court was not authorized to unilaterally impose an enhanced sentence based upon its conclusion that in protesting his innocence during a pre-sentence interview, the defendant violated a condition of his plea of guilty that he would fully cooperate with the probation department (see, People v. Parker, 271 A.D.2d 63, 711 N.Y.S.2d 656;  People v. Gerena, 219 A.D.2d 734, 631 N.Y.S.2d 733;  People v. Stennett, 207 A.D.2d 847, 616 N.Y.S.2d 980;  People v. Raffaele, 199 A.D.2d 545, 605 N.Y.S.2d 405;  People v. Carr, 135 A.D.2d 722, 522 N.Y.S.2d 623;  People v. Daniels, 132 A.D.2d 667, 518 N.Y.S.2d 37;  People v. Brunson, 131 A.D.2d 689, 516 N.Y.S.2d 767;  People v. Nunez, 248 A.D.2d 561, 669 N.Y.S.2d 881).   Accordingly, the sentence is modified by reducing the term of imprisonment imposed on the conviction of sexual abuse in the first degree to the term originally promised in the plea agreement.