People v Appleberry

People v Appleberry 2006 NY Slip Op 08434 [34 AD3d 1257] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

The People of the State of New York, Respondent, v Jerrel L. Appleberry, Appellant.

—[*1]Appeal from a judgment of the Livingston County Court (Gerard J. Alonzo, J.), rendered July 14, 2005. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Livingston County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [4]). Contrary to the contention of defendant, County Court did not abuse its discretion in denying his motion seeking to withdraw his plea (see generally People v Alexander, 97 NY2d 482, 485 [2002]). However, we agree with defendant that, "because restitution was not part of the plea agreement, the court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution" (People v Therrien, 12 AD3d 1045, 1046 [2004]; see People v Cooke, 21 AD3d 1339 [2005]; People v Delair, 6 AD3d 1152 [2004]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court to impose the promised sentence or to afford defendant the opportunity to withdraw his plea. Present—Hurlbutt, A.P.J., Scudder, Gorski and Smith, JJ.