
    The People of the State of New York, Respondent, v John H. Mackley, Appellant.
   Judgment unanimously reversed and matter remitted to Supreme Court, Monroe County, for further proceedings on the indictment. Memorandum: On his plea of guilty to five counts of sodomy in the third degree, defendant was sentenced as a predicate felon to five consecutive terms of imprisonment with a minimum of two years and a maximum of four years. It is conceded that at the time of his plea on October 24, 1978 defendant was incorrectly advised that he faced a term of imprisonment with a minimum of 2 years and a maximum of 20 years because by law the minimum periods of imprisonment would merge (see Penal Law, § 70.30, subd 1, par [b], prior to enactment of L 1978, ch 481, §24). However, appellant’s crimes occurred on or about September 2 and 3, 1978, and effective September 1, 1978, section 70.30 (subd 1, par [b]) of the Penal Law was amended to provide that the minimum periods of imprisonment are added to arrive at an aggregate minimum period of imprisonment equal to the sum of all the minimum periods. As a result defendant’s sentence was 10 years to 20 years instead of 2 years to 20 years. In this appeal defendant seeks to withdraw his guilty plea. The People maintain that the defendant is only entitled to specific performance of the sentence promised at the time his plea was received. The interests of justice are not served by permitting the resentencing of the defendant upon his plea of guilty. Since the plea bargain agreement is illegal (Penal Law, § 70.30, subd 1, par [b]), it is ineffective as a contract, not entitled to specific performance and must be disregarded. The People and the defendant are entitled to be restored to their status before the plea (People v Bice, 25 NY2d 822; see, also, Santobello v New York, 404 US 257). Defendant should be allowed to plead anew to the counts contained in the indictment. (Appeal from judgment of Monroe Supreme Court—sodomy, third degree.) Present—Simons, J. P., Hancock, Jr., Schnepp, Doerr and Moule, JJ.  