People v. Acevedo

Appeal by the defendant (1) from a judgment of the Supreme Court, Queens County (Kohn, J.), rendered February 1, 1994, convicting him of criminally negligent homicide, upon his plea of guilty, and imposing sentence, and (2) by permission, from an order of the *803same court, dated May 9, 1994, which denied the defendant’s motion to vacate his plea of guilty pursuant to CPL 440.20 and 440.30.

Ordered that the judgment and order are reversed on the law, the defendant’s motion is granted, and the matter is remitted to the Supreme Court, Queens County for further proceedings consistent herewith.

The general waiver of appeal rights which the defendant executed did not waive his appellate claim that his plea of guilty was not voluntarily, knowingly, or intelligently entered (see, People v Seaberg, 74 NY2d 1, 9).

The record indicates that the court failed to comply with its promise to afford the defendant the opportunity to withdraw his plea of guilty if the pre-sentence report turned out to be "unfavorable”. Mangano, P. J., O’Brien, Ritter, Pizzuto and Florio, JJ., concur.