The People of the State of New York, Respondent, v. Jose Mojica, Appellant

The People of the State of New York, Respondent, v Jose Mojica, Appellant. [613 NYS2d 411] [MAJORITY] Appeal by the defendant from a judgment of the Supreme Court, Kings County (Harkavy, J.), rendered August 3, 1993, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, to give the defendant an opportunity to withdraw his plea. As part of a plea agreement, the court improperly agreed to place the defendant on interim probation by postponing his sentence to allow him to enter a drug treatment program, and promising him that it would vacate his guilty plea if he successfully completed the program (see, People v Rodney E., 77 NY2d 672; People v Johnson, 197 AD2d 638; People v Rodriguez, 202 AD2d 698). Accordingly, the defendant must be given an opportunity to withdraw his plea. Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.