
    [774 NE2d 205, 746 NYS2d 441]
    The People of the State of New York, Appellant, v Charlie Hicks, Respondent.
    Argued June 6, 2002;
    decided July 1, 2002
    
      POINTS OF COUNSEL
    
      Howard R. Relin, District Attorney, Rochester (Arthur G. Weinstein of counsel), for appellant.
    A defendant’s unwillingness to acknowledge wrongdoing is an ascertainable and appropriate factor in sentencing. (People v Selikoff, 35 NY2d 227, 419 US 1122; People v Avery, 85 NY2d 503; People v Parker, 271 AD2d 63; United States v Dunnigan, 507 US 87; People v Marchese, 160 Misc 2d 212; People v Serrano, 15 NY2d 304; People v Lococo, 92 NY2d 825; United States v Kosmel, 272 F3d 501.)
    
      Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of counsel), for respondent.
    The trial court improperly enhanced defendant’s sentence, without providing to him an opportunity to withdraw his plea, on the basis of defendant’s violation of subjective sentencing conditions which violate due process and which do not advance the objectives of penal sanction. (Mitchell v United States, 526 US 314; United States v Rivera, 201 F3d 99; People v Esajerre, 35 NY2d 463; People v Parker, 271 AD2d 63; People v Selikoff, 35 NY2d 227; Santobello v New York, 404 US 257; Boykin v Alabama, 395 US 238; Johnson v Zerbst, 304 US 458; Brady v United States, 397 US 742; People v McConnell, 49 NY2d 340.)
    
      Charles S. Turner, County Attorney, Rochester (Linda R. Kelly of counsel), for Monroe County Office of Probation-Community Corrections, amicus curiae.
    A defendant’s unwillingness to acknowledge wrongdoing is an impediment to rehabilitative efforts and negates the intent of the court to ameliorate community risk when granting a reduced sentence.
    
      Jonathan E. Gradess, Albany, and Alfred O’Connor for New York State Defenders Association, amicus curiae.
    I. A court’s reservation of the right to unilaterally increase a bargained-for sentence for a defendant’s “lies” concerning culpability during a presentence interview is fundamentally incompatible with its obligation to supervise the plea bargaining process, since the threat will inhibit defendants from making even well-founded post-plea claims of coercion or innocence. Imposition of such a condition violates public policy because it compromises the court’s critical role in ensuring that a guilty plea is knowingly, voluntarily and intelligently entered. (People v Parker, 271 AD2d 63; People v McConnell, 49 NY2d 340; People v Flowers, 30 NY2d 315; Britt v Legal Aid Socy., 95 NY2d 443; Matter of Randall v Rothwax, 78 NY2d 494; People v Pelchat, 62 NY2d 97; People v Wheaton, 45 NY2d 769; People v Flowers, 30 NY2d 315; People v Beasley, 25 NY2d 483; People v Berger, 9 NY2d 692.) II. This Court should reject the lower court’s sentence condition because widespread acceptance of it by criminal court judges in New York would lead to increased costs and delays without any corresponding benefit to the administration of justice. (People v Palazo, 147 Misc 2d 829; United States v Ming He, 94 F3d 782; United States v Herrera-Figueroa, 918 F2d 1430; People v Parker, 271 AD2d 63.)
   OPINION OF THE COURT

Chief Judge Kaye.

Was defendant’s false denial of his criminal conduct to the Probation Department — in violation of an explicit written plea condition that he truthfully answer questions asked of him by the Department — an appropriate basis for enhancement of his sentence? In this case it was.

In a written statement given to the police, defendant admitted to sexual contact with two sisters — then six and seven years old — who had been entrusted to his care. Defendant was later indicted on three counts of first degree rape, one count of second degree rape and four counts of endangering the welfare of a child. In satisfaction of all counts, defendant pleaded guilty to two counts of rape in the first degree. Defendant negotiated a proposed sentence of consecutive three-to-six-year terms on the satisfaction of several requirements agreed to in writing. Most relevantly, defendant agreed that he would “truthfully answer all quéstions asked of [him] by the Court” and “truthfully answer all questions asked of [him] by the Probation Department” (emphasis in original). Defendant further agreed that if he violated any condition, the sentencing court was not bound by its promises made to him and defendant could not withdraw his plea.

At the plea colloquy, the court asked defendant whether he understood that the agreement was conditional, and that defendant had certain requirements to live up to, including an obligation “to answer all of the questions that the probation officer asks you in a truthful fashion.” Defendant answered that he understood. Defendant then admitted that he had sexual intercourse with both children.

Two weeks later, the Probation Department interviewed defendant in preparation of a presentence investigation report. According to the report, at this interview defendant “denied guilt in this crime. He said he never had any sexual intercourse or touched the children with any sexual provocation.” Rather, defendant told the probation officer that the children initiated sexually suggestive contact with him.

Based on defendant’s acknowledged lie to the probation officer, the trial court sentenced him to two consecutive 10-to-20-year terms. On appeal, the Appellate Division held that “the court improperly enhanced defendant’s sentence in this case” (citing People v Parker, 271 AD2d 63, 69-70 [4th Dept], lv denied 95 NY2d 967 [2000]; People v Burns, 279 AD2d 586, 587 [2d Dept 2001]), and modified the judgment to impose the bargained-for sentence (288 AD2d 882, 883).

In urging reversal, the People argue that the sentencing court appropriately considered defendant’s lie in enhancing his sentence. While conceding that he lied to the probation officer about his crime, defendant argues that the court acted inappropriately in departing from the negotiated agreement, first because breach of a condition to answer truthfully is necessarily subjective, and second because — unlike factors like family background and personal history — failure to acknowledge guilt to a probation officer is not directly related to the court’s sentencing function. We conclude that defendant’s arguments are without merit.

Conditions agreed upon as part of a plea bargain are generally enforceable, unless violative of statute or public policy. (People v Avery, 85 NY2d 503, 507 [1995]). Additionally, even where a plea agreement has been reached, and a defendant has entered a plea in reliance on the agreement, it is ultimately up to the court to impose what it considers an appropriate sentence (People v Farrar, 52 NY2d 302, 306 [1981]). As a matter of law and strong public policy, a sentencing promise made in conjunction with a plea is conditioned upon “its being lawful and appropriate in light of the subsequent presentence report or information obtained from other reliable sources” (People v Selikoff, 35 NY2d 227, 238 [1974]).

The Criminal Procedure Law provides that, where a person is convicted of a felony, the court must order a presentence investigation of the defendant, and it may not pronounce sentence until it has received a written report of such investigation (CPL 390.20 [1]). The investigation supporting the presentence report includes the gathering of a wide variety of information — including a criminal, social, employment, family, economic, educational and personal history of defendant; information “with respect to the circumstances attending the commission of the offense”; and other information that the court directs to be included or is otherwise deemed relevant to the question of sentence (CPL 390.30 [1]). The presentence report may well be “ ‘the single most important document at both the sentencing and correctional levels of the criminal process’ ” (5 LaFave, Criminal Procedure § 26.5 [b], at 788 [2d ed], quoting Fennell & Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv L Rev 1613 [1980]).

Several considerations support the court’s enhancement of defendant’s sentence. Initially, there is nothing “subjective” about the particular condition at issue in this case. It was explicit, objective, accepted by defendant — and concededly breached (see, by contrast, People v Outley, 80 NY2d 702 [1993] [defendants denied complicity in crimes underlying violation of “no-arrest” condition]). Sentence enhancement based on defendant’s violation of the condition, moreover, did not violate any statute or public policy. Defendant’s failure to answer the Probation Department truthfully about his crime hindered the preparation of an accurate report for the court’s use at sentencing. Finally, as the sentencing court noted, the acceptance of responsibility for a sexual offense is a step toward rehabilitation (see e.g. McKune v Lile, 536 US 24, 57 [2002]). In short, the result we reach in this case is premised on the nature of defendant’s breached promise and its pertinence to his sentence.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed and the case remitted to that Court for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.

Order, insofar as appealed from, reversed, etc. 
      
       While defendant before us attempts to recast the issue as one of due process, he made no such claim before the sentencing court.
     