(dissenting). We respectfully dissent.
Taking issue with the majority’s assertion that “essentially the same contentions” were considered and rejected by this Court upon a codefendant’s earlier appeal (see, People v Anonymous, 262 AD2d 717, lv denied 93 NY2d 1013), we believe there are significant, operative differences between this defendant’s position, and the record support therefor, and that presented on his codefendant’s appeal. Moreover, there is absolutely no basis on which to assume that the prosecutor dealt with the codefendant in the same manner as with defendant herein. In this regard, we note that whereas the codefendant admittedly went to the second floor of the residence and actively participated in the assaults, defendant left the premises within minutes of entering, never went upstairs and took no part in the assaults.
Our decision in the codefendant’s appeal made explicit reference to the absence of support in the record for his claim that the prosecutor breached an “off-the-record” promise with respect to his plea and/or sentence (People v Anonymous, supra, at 717). We found thát the terms of defendant’s plea offer were fully set forth in the record, and that nothing therein disclosed the existence of a promise made to the defendant (id., at 718). In contrast, defendant herein, while claiming that the prosecutor’s promise was made off the record, avers that it was made in chambers and his assertion is corroborated by County Court’s references thereto during the plea colloquy, with which the prosecutor concurred, as follows:
“the court: * * * Where we are in a nut shell is this * * * *777the People have indicated to the Court that they would consent to, I’ve indicated to your attorney that I would consent to, a disposition of this indictment at this time as follows: If you were to plead guilty to a reduced charge, burglary — excuse me, burglary in the second degree, that would satisfy all counts— both counts of this indictment against you. Maximum sentence you would receive at time of sentencing would be two and a quarter to four and a half years state’s prison. There is a possibility you might receive less than that. We’re going to adjourn sentencing to give you an opportunity to convince the People and court that you deserve something less than two and a quarter to four and a half. People consent? [Emphasis supplied.]
“ms. parry: Yes, your Honor.”
It is uncontroverted that subsequent to the entry of his plea, defendant participated in debriefings by the prosecutor’s investigators, in which the prosecutor participated. It is also clear from the record that at the time of defendant’s plea, the prosecution was fully aware of defendant’s minimal involvement in the events surrounding the crimes, and the active roles of the two codefendants. Nonetheless, the prosecution held out to defendant the chance to mitigate his exposure by cooperating. To what purpose? What could the People have fairly expected from defendant at that time and under those circumstances? In what respect did defendant’s subsequent cooperation fall short of the prosecutor’s reasonable and fair expectations? A hearing must be held to answer these troubling questions. If defendant’s plea rested in any significant degree on a promise or agreement of the prosecutor, so that it might be said to be a part of the inducement or consideration for the plea, the promise must be fulfilled (see, Santobello v New York, 404 US 257; People v McConnell, 49 NY2d 340, 346).
We would remit the matter to County Court for a hearing pursuant to CPL 440.10 before another Judge.
Cardona, P. J., concurs. Ordered that the judgment and order are affirmed, and matter remitted to the County Court of Broome County for further proceedings pursuant to CPL 460.50 (5).