(dissenting). I would reverse the judgment and remand the case to the County Court for specific performance of the sentence promise made by the Trial Judge.
The record incontrovertibly shows an unconditional promise by the Judge that no jail sentence would be imposed. Prior to the acceptance of the guilty plea the court stated, in haec verba, “No incarceration of you is required and based upon this plea as to what other sentence I shall impose, I do riot know and I make no promises.” The “other sentence” necessarily referred to the alternative of a fine or probation.
Subsequently the court imposed a prison term of a maximum of five years and a fine 6f $1,000.
The court explained its action by indicating that additional information had come to its attention which made it inappropriate for it to keep its promise and offered to allow a withdrawal of the plea, which offer the defendant rejected. No claim is made that the defendant or anyone on Ms behalf misrepresented any facts which led to the court’s promise.
I agree with the basic position we took in People v. Di Giacomo (40 A D 2d 689) that a promise should be fulfilled or, if the arrangement is to be undone, that the People and the defendant are to be restored to the status obtaining before the plea, citing People v. Rice (25 N Y 2d 822). (See, also, Santobello v. New York, 404 U. S. 257.)
*381However, returning to the status quo ante is impossible in this case where codefendants of this defendant have been tried and acquitted in the interim and the defendant himself has waived his constitutional right against self incrimination and has made a full disclosure of his involvement in the crime to the prosecuting authorities and the Probation Department. The record shows that immediately prior to acceptance of the plea and the making of the promise there was a full discussion of the defendant’s participation in the crimes charged. The Judge, some four members of the prosecutor’s staff, the defendant and his attorney took part in that session. Thus, in reliance upon the court’s promise, he at that time and subsequently laid bare all the facts pointing to his culpability. Furthermore, in view of the dilemma in which the court found itself, it would* be somewhat unrealistic to suppose that sometime prior to sentence the District Attorney’s office was not made aware of whatever additional information the Probation Department had gathered.
We need not fear any wholesale miscarriages of justice by requiring the court to abide by its commitment, since absolute promises, without reservations, such as we are dealing with here, are rare and there is really no need to make them. Faith in the judicial process is more important than seeing that this particular defendant receives a prison term, even though he may deserve it.
There may be some question about the desirability of a Trial Judge taking part in plea discussions and certainly he should not make an unqualified promise as to, sentence prior to receipt of a presentence report. The American Bar Association has disapproved of these practices (see American Bar Association Project on Minimum Standards for Criminal Justice, vol. on Pleas of Guilty, § 3.3). It acknowledges, nonetheless, that the practice of judicial participation in plea bargaining is rather widespread (id., commentary on § 3.3[a]). However, in the instant case we are confronted with a fait accompli and the question is how to mete out even-handed justice.
On the other side of this coin, i.e., where a defendant has démanded the right to withdraw his plea and the People have insisted on specific performance of the plea bargain, both this court in People v. Chadwick (33 A D 2d 687) and the First Department in People v. Santobello (39 A D 2d 654) have required specific performance. In contrast, here we have the defendant demanding specific performance.
*382The law must be fair and there is little justice in adopting or pursuing a rule which does not apply equally to the People and to the defendant.
. Hopkins, Acting P. J., Munder and Christ, JJ., concur with Martuscello, J.; Gulotta, J., dissents and votes to reverse and remand the case to the County Court for specific performance of the sentence promise by the Trial Judge, with an opinion.
Judgment of the County Court, Westchester County, rendered August 16, 1972, affirmed.
The case is remitted to the County Court, Westchester County, for proceedings to direct defendant to surrender himself to that court in order that execution of1 the judgment shall be commenced or resumed (CPL 460.50, subd. 5).