
    The People of the State of New York, Respondent, v Robert Stryker, Appellant.
    [665 NYS2d 176]
   —Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant was charged with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and unlawfully dealing with a child in the first degree. Following plea negotiations, the People agreed to allow defendant to plead guilty to a class D felony with an agreed-upon sentence of 3 to 9 years, conditioned on defendant’s cooperation with undercover investigations. County Court advised defendant that it would not abide by the agreed-upon sentence if defendant failed to appear at sentencing. When defendant failed to appear at sentencing, the court issued a bench warrant for defendant’s arrest. When he appeared before the court following that arrest, defendant advised the court that, on the date of sentencing, he had been incarcerated in Onondaga County Jail and had asked correction officers to contact Cayuga County Court to explain why he was unable to appear for sentencing. Although they allegedly told defendant that they would, they did not do so. Defendant further stated that he had attempted to contact defense counsel, but that counsel had left his employment and the current defense counsel was assigned without defendant’s knowledge. Current defense counsel confirmed that fact. The court imposed a sentence of 8V3 to 25 years.

Under the circumstances, and in the exercise of our discretion, we vacate the sentence and impose the originally bargained for sentence of 3 to 9 years.

We have considered defendant’s remaining contentions and conclude that they are without merit. (Appeal from Judgment of Cayuga County Court, Contiguglia, J.—Criminal Sale Controlled Substance, 3rd Degree.) Present—Denman, P, J., Hayes, Callahan and Fallon, JJ.  