
    The People of the State of New York, Respondent, v Jerry Faulkner, Appellant.
   Crew III, J.

Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered January 24, 1990, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant was indicted and charged with criminal sale of a controlled substance in the third degree. He pleaded guilty to attempted criminal sale of a controlled substance in the third degree pursuant to an agreement by which he would be granted youthful offender treatment and sentenced to a prison term of 1 to 3 years. Defendant was released on his own recognizance pending sentencing and the promised disposition was made contingent upon his reporting back to court for sentencing; if defendant was arrested prior to sentencing on a Penal Law violation, the agreed-to disposition would be nullified and he would be subject to a harsher sentence.

On the date of sentencing it appeared that defendant had been arrested and indicted for criminal sale of a controlled substance in the second degree. Defense counsel responded that defendant pleaded not guilty to that charge, that he maintained his innocence, that his arrest was completely out of his control and that he had not done anything. County Court disregarded those statements and, based upon the subsequent arrest, denied defendant youthful offender treatment and sentenced him to an indeterminate prison term of 4 to 12 years. Defendant appeals.

The sentence must be vacated. When defendant disputed the validity of the subsequent arrest and criminal charge, County Court should have afforded him the opportunity to refute the subsequent charge at a presentence conference (see, People v Banks, 161 AD2d 957, 957-958).

Weiss, P. J., Mikoll and Mercure, JJ., concur. Ordered that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Albany County for further proceedings not inconsistent with this court’s decision; and, as so modified, affirmed.  