PEOPLE v. LOWMAN (1997)

Appeal by the defendant from a judgment of the County Court, Westchester County (Eidens, J.), rendered June 23, 1995, convicting him of attempted criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the defendant's plea of guilty is vacated, and the matter is remitted to the County Court, Westchester County, for further proceedings.

Prior to the entry of his plea of guilty, the defendant was advised that the court would consider running the promised sentence of three to six years imprisonment concurrently with a term of imprisonment imposed on him for violation of parole and, “if the court feels that it cannot comply,” the defendant would be afforded an opportunity to withdraw his plea.   At sentencing, the court informed the defendant that it did not have the authority to direct that the sentences run concurrently and denied his application to withdraw his plea.   Under the circumstances, the defendant was entitled to withdraw his plea (see, People v. Torres, 45 N.Y.2d 751, 408 N.Y.S.2d 487, 380 N.E.2d 313;  People v. Fuller, 132 A.D.2d 617, 517 N.Y.S.2d 571).

MEMORANDUM BY THE COURT.