People v. Kelly

—Judgment unani*938mously modified on the law and as modified affirmed and matter remitted to Monroe County Court for further proceedings in accordance with the following Memorandum: Pursuant to a plea and sentence agreement, defendant pleaded guilty to one count of rape in the first degree based upon County Court’s promise to sentence defendant as a second felony offender to an indeterminate term of incarceration of 41/2 to 9 years. After accepting defendant’s plea, the court conditioned its sentencing promise on defendant not being arrested before sentence (see, People v Outley, 80 NY2d 702).…