Appeal from a judgment of the District Court of Nassau County, First District (Edward A. Maron, J.), rendered December 21, 2006. The judgment convicted defendant, upon his plea of guilty, of petit larceny, and sentenced him to three years' probation, with 30 days' imprisonment running concurrently with the term of probation as a condition thereof; the payment of restitution; and a $250 fine.

Judgment of conviction modified on the law by vacating so much of the sentence as imposed a 30-day term of imprisonment as a concurrent condition of defendant's probation; as so modified, affirmed.

A condition of defendant's plea bargain was that he perform community service. At the direction of the lower court, defendant fully performed this community service prior to the sentencing date. As the People concede, in view of defendant's having thus
been placed in a "no-return position" (People v McConnell, 49 NY2d 340, 345 [1980]), and in view of the undisputed favorable information about defendant presented to the lower court, the lower court improvidently exercised its discretion in determining that the facts set forth in the presentence report provided sufficient ground to warrant departure from the plea bargain at sentencing (see People v Danny G., 61 NY2d 169 [1984]; People v McConnell, 49 NY2d 340 [1980], supra). Defendant was consequently entitled to specific performance of the bargain (see People v Danny G., 61 NY2d 169 [1984], supra; People v McConnell, 49 NY2d 340 [1980], supra). Accordingly, so much of the sentence as imposed a 30-day term of imprisonment as a concurrent condition of defendant's probation is vacated.

McCabe and Scheinkman, JJ., concur.

Rudolph, P.J., taking no part.
Decision Date: July 2, 2008