The People of the State of New York, Respondent, v. Gregory J. Scerbo, Appellant

The People of the State of New York, Respondent, v Gregory J. Scerbo, Appellant. [604 NYS2d 875] [MAJORITY] —Judgment unanimously modified on the law and as modified affirmed and matter remitted to Oswego County Court for further proceedings in accordance with the following Memorandum: Defendant agreed to enter a plea of guilty to burglary in the third degree in return for an indeterminate term of imprisonment of 3Vz to 7 years. At the time of sentencing, the court imposed the agreed upon sentence and further ordered defendant to pay restitution in the total sum of $1,958.25 (see, Penal Law § 60.27). That was error (see, People v Lefler, 193 AD2d 1143; People v Jackson, 188 AD2d 1086). Because the sentence imposed was more severe than that bargained for, we modify the judgment by vacating the sentence and remitting the matter to the sentencing court to impose the sentence promised or to afford defendant the opportunity to withdraw his plea (see, People v Lefler, supra; People v Jackson, supra). (Appeal from Judgment of Oswego County Court, Brandt, J.— Burglary, 3rd Degree.) Present—Green, J. P., Pine, Fallon, Doerr and Davis, JJ.