People v. Smith (203 A.D.2d 308, 1994)

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Orgera, J.), rendered April 6, 1993, convicting her of attempted criminal possession of a controlled substance in the third degree, upon her plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, to give the defendant an opportunity to withdraw her plea, and for further proceedings on the indictment.

By postponing the defendant’s sentence after her plea of guilty, placing her with a drug treatment program, and promising her that it would vacate her plea if the defendant successfully completed the program, the court impermissibly placed the defendant on interim probation. Accordingly, it was improper for the court to impose an increased sentence when the defendant failed to successfully complete the program, without affording her an opportunity to withdraw her plea (see, People v Rodney E., 77 NY2d 672; People v Johnson, 197 AD2d 638, adhered to on rearg [Jan. 13, 1994]). Bracken, J. P., Miller, Copertino, Santucci and Altman, JJ., concur.