Milonas, J. (dissenting in part). In accepting defendant’s plea of guilty to charges of criminal possession of stolen property, burglary and attempted burglary, on March 11, 1991, the Supreme Court repeatedly advised defendant that he would be sentenced to an aggregate term of 4 to 8 years’ imprisonment if he were not arrested for any further crimes, appeared for sentencing and cooperated with probation, and that in the event he violated any of these conditions, the maximum sentence allowed by law, said to amount to an effective aggregate term of 11 to 22 years’ imprisonment, would be imposed, without any opportunity for defendant to withdraw the plea in the face of the enhanced sentence. In a colloquy, the court made clear an erroneous arrest or a charge dismissed within three days would not constitute a breach of these conditions such as to lead to the imposition of the enhanced sentence.
It developed that defendant was arrested for, and indicted in connection with, a Westchester County burglary committed on March 28, 1991. At the May 2, 1991 sentencing proceeding, defendant’s counsel requested, inter alia, a hearing as to whether defendant had committed and/or participated in the Westchester burglary. Counsel conceded, for purposes of the *26proceeding, that the passenger of a Jeep owned by defendant had broken in the door of a Yonkers residence on March 28, 1991 and had fled in the Jeep, driven by another, after being observed in the midst of this crime; and that defendant had been identified as the driver of the Jeep by a Yonkers police officer. It was maintained, however, that such identification was mistaken and based solely upon a 20-second viewing of the driver of the moving vehicle. Defense counsel offered the written statement of one Anthony Salveggi, asserting that he had borrowed defendant’s vehicle that day, was the driver at the time of the incident, and that the door of the Yonkers residence had been broken in by his passenger, codefendant herein, Alfredo Occhino. Further, counsel represented there were three alibi witnesses prepared to testify that defendant was working in a carpet store in the Bronx at the time of the incident. The court denied defendant’s applications, finding the conditions of the plea bargain leading to imposition of the enhanced sentence had been fully and carefully discussed at the plea proceeding. The court proceeded to state:
"I look at it, at an arrest and sometimes I use it and sometimes I don’t, it depends on my review of the quality of the arrest and some of the circumstances surrounding it before I actually use it as an enhancing factor despite the strong language that I use at the time that I accept the plea and condition it on another arrest.
"However, in this case not only was the defendant arrested but he was subsequently indicted so that there is an additional filter for the quality of the arrest, and not only was he arrested and not only was he indicted, but he was arrested and indicted for things that he does professionally, burglary.”
The court then imposed maximum consecutive terms, which in fact amounted to an effective aggregate term of 10 to 20 years’ imprisonment.
The courts of this State, including this court, have repeatedly upheld the practice of imposing an enhanced sentence for breach of a plea condition that defendant "stay out of trouble” and/or not be re-arrested prior to sentencing (People v Murello, 47 AD2d 528, affd 39 NY2d 879; People v Innes, 111 AD2d 356; People v Caridi, 148 AD2d 625; People v Hernandez, 155 AD2d 361; People v Harrison, 161 AD2d 550). The provision for an enhanced sentence upon breach of such condition is a necessary and essential deterrent to criminal conduct by defendants, convicted upon their plea of guilty, who are *27released pending sentence. Moreover, in this case, the court’s statements at both the plea and sentencing proceedings make it abundantly evident that the terms of the plea bargain did not call for an enhanced sentence merely upon an accusation against defendant. The court made it clear that "an erroneous arrest” would not constitute a breach of the condition of the plea arrangement, and that only a "quality” arrest would lead to imposition of the enhanced sentence. The court effectively communicated that the condition of the plea arrangement was that defendant not commit a postplea crime and that if defendant did so, an enhanced sentence would be imposed without the opportunity to withdraw the plea (see, United States v Giorgi, 840d 1022, 1026). Thus, the deficiency found in the plea allocution in the Innes case, by the Second Circuit in Federal habeas corpus litigation, of insufficient warning that there would be no opportunity to withdraw the plea in the face of an enhanced sentence (Innes v Dalsheim, 864d 974) is not presented here. Insofar as the enhanced sentence was imposed in the absence of a conviction (or any finding of guilt beyond a reasonable doubt) of a postplea crime, the practice is completely consistent with that of allowing consideration in sentencing of events underlying counts of an indictment which have been dismissed and even of events underlying crimes of which defendant has been acquitted (United States v Sweig, 454d 181; Billiteri v United States Bd. of Parole, 541d 938, 944).
While the plea arrangement was therefore enforceable, this matter differs from the above, earlier New York State cases, in that defendant herein denied committing the alleged post-plea crime or even participating in the acts which led to the arrest and charge. It is well established that a defendant is entitled to an opportunity to refute routine, aggravating factors in a probation report which may negatively influence the court in sentencing (People v Perry, 36 NY2d 114, 119). In these circumstances, where the consequences of defendant’s commission of a postplea crime are so substantial under the terms of the plea arrangement itself, it is incumbent upon the sentencing court to conduct a hearing to resolve the disputed factual contentions. Indeed, this court has itself so held. "As a matter of due process, a court may not use extraneous crimes to enhance a sentence unless it first has ascertained, by way of accurate, reliable evidence, that defendant actually committed those crimes” (People v Villanueva, 144 AD2d 285). The Third Department has also held a hearing is required in these *28circumstances. In People v Banks (161 AD2d 957), the promised sentence was contingent upon defendant not getting " 'into any additional trouble between now and the time of sentence’ the sentencing court imposed a higher term without conducting a hearing upon defendant’s denial of criminal involvement in the theft or possession of a stolen car in which he had been arrested. The Appellate Division found that the sentencing court "deprived defendant of his right to a meaningful opportunity to refute the single, aggravating factor which influenced the court in increasing defendant’s punishment”. (Supra, at 958.) Significantly, the Federal District Court, in the course of denying James Innes’ writ of habeas corpus, stated that "[a]t sentencing a defendant is, of course, entitled to require the prosecution to make some kind of showing that he did engage in acts that led to an arrest and charge” (Innes v Dalsheim, 680 F Supp 517, 520, revd on other grounds 864d 974, supra).
There is no merit to the sentencing court’s implication that the Grand Jury’s indictment of defendant in connection with the Westchester burglary was sufficient protection against the possibility of imposition of an enhanced sentence based upon an erroneous arrest. The standard applicable to Grand Jury proceedings is merely that the evidence (viewed most favorably to the prosecution) be legally sufficient to establish the accused committed the offense charged and also provide reasonable cause to believe the accused committed the offense (CPL 190.65; People v Mikuszewski, 73 NY2d 407, 411). The proceeding is not an adversarial one and defendant is neither entitled to cross-examine witnesses nor to be represented by an attorney during the testimony of other witnesses. This is not to say that the prosecution must establish defendant’s commission of a postplea crime beyond a reasonable doubt in order to enforce the plea arrangement to the extent of having the enhanced sentence imposed. The "preponderance of the evidence” standard should be applicable to such a hearing, as is with respect to other disputed factual matters in sentencing which are legitimately the subject of an adversarial hearing (United States v Lee, 818d 1052, cert denied 484 US 956). The prosecution, however, should not obtain enforcement of the more onerous, enhanced sentence, in the face of defendant’s substantiated denial, without a showing that defendant committed a postplea crime.
Accordingly, the judgment of the Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered May 2, 1991, which *29convicted defendant, upon his guilty plea, of criminal possession of stolen property in the third degree, burglary in the third degree, and attempted burglary in the third degree (two . counts), and sentenced him to consecutive terms of 316 to 7, 3Vi to 7, lVz to 3 and IV2 to 3 years’ imprisonment, respectively, should be modified, on the law, to vacate the sentence, and the matter should be remanded for resentencing proceedings not inconsistent with this decision, and the judgment should be otherwise affirmed.
Sullivan, J. P., and Asm, J., concur with Ross, J.; Milonas and Smith, JJ., dissent in part in an opinion by Milonas, J.
Judgment, Supreme Court, Bronx County, rendered May 2, 1991, affirmed.