The People of the State of New York, Respondent,
v.
Raphael Torres, Appellant.
Court of Appeals of the State of New York.
Argued January 6, 1986. Decided February 4, 1986.David Samel and William E. Hellerstein for appellant.
Mario Merola, District Attorney (Kevin Lubin and Billie Manning of counsel), for respondent.
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur; Judge HANCOCK, JR., taking no part.
*660MEMORANDUM.
The order of the Appellate Division should be modified by vacating the sentence, and the case remitted to Supreme *661 Court, Bronx County, with instructions to resentence appellant before a different Judge.
The People admit violation of their promise to take no position regarding sentence, but contend defendant has failed to preserve this issue for review. However, defendant can be restored to his presentence position without withdrawing his plea, and he did timely interpose an objection prior to the prosecutor's remarks at sentencing, when the error could have been cured (see, People v Tindle, 61 N.Y.2d 752, 754).
Order modified and case remitted to Supreme Court, Bronx County, with instructions to resentence appellant in accordance with the memorandum herein and, as so modified, affirmed.