
    The People of the State of New York, Respondent, v. Franklin Griffin, Appellant.
   Judgment, Supreme Court, New York County, rendered on April 9, 1970, convicting the defendant of the crime of attempt to commit the crime of burglary in the third degree and sentencing the defendant to an indeterminate term of imprisonment not to exceed four years, unanimously modified, on the law and the facts and in the interest of justice, to the extent of reducing the sentence to an indeterminate term of imprisonment not to exceed three years, and otherwise affirmed. We originally withheld final determination of this appeal pending a hearing to determine whether a promise of a maximum three-year sentence was made (People v. Griffin, 36 A D 2d 947). The hearing court found that such an offer was made to the defendant in December, but that It was withdrawn on January 5, 1970. We agree with the hearing court that a promise was made to the defendant. However, there is insufficient basis in the record for the conclusion of the hearing court that the offer was withdrawn on January 5. Accordingly, the remedy of modification of the sentence to conform to the promise made is appropriate. Concur — Nunez, J. P., Kupferman, Murphy, Lane and Steuer, JJ.  