
    The People of the State of New York, Respondent, v. Charles Edwards, Appellant.
   Appeal (by permission) by defendant from an order of the Supreme Court, Queens County, dated October 1, 1973, which denied, without a hearing, his motion, pursuant to CPL 440.10, to vacate a judgment of conviction under which he had been sentenced to an indeterminate prison term not to exceed seven years, to run concurrently with a previous sentence upon a different conviction. Order reversed, on the law, and case remanded to Criminal Term for proceedings not inconsistent with the views herein set forth. In entering a plea of guilty of a class D felony, defendant was promised that the court would sentence him to an indeterminate term to run concurrently with the unserved portion of a reformatory term previously imposed for a felony. Pursuant to section 75.10 (subd. 2, par. [c], cl. [ii]) of the Penal Law, the Board of Parole must fix a termination date for defendant’s reformatory sentence. Such unexpired term must be added to the seven-year maximum term imposed by the trial court. Thus, by operation of law, defendant’s seven-year sentence cannot correctly run concurrently with his unexpired reformatory term as promised, and directed, by the sentencing court, but must run consecutively as provided in the above provision of the Penal Law. Therefore, the case must be remanded to the Criminal Term either to afford petitioner an opportunity to withdraw his guilty plea or for modification of the sentence in accordance with the above provision of the Penal Law (see People v. Miller, 38 A D 2d 745). Hopkins, Acting P. J., Cohalan, Christ, Benjamin and Munder, JJ., concur.  