People v Hunter

People v Hunter 2010 NY Slip Op 03564 [72 AD3d 1536] April 30, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

The People of the State of New York, Respondent, v Ian Hunter, Appellant.

—[*1] Anna Jost, Tonawanda, for defendant-appellant.

Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), for respondent.

Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), rendered September 6, 2007. The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and 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 burglary in the second degree (Penal Law § 140.25 [2]). We agree with defendant that County Court erred in enhancing the sentence by imposing restitution at sentencing inasmuch as restitution was not included as part of the plea agreement. Although defendant failed to preserve that contention for our review (see People v Cooke, 21 AD3d 1339 [2005]), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We conclude that the court should have afforded defendant the opportunity to withdraw his plea prior to ordering him to pay restitution (see Cooke, 21 AD3d 1339 [2005]; People v Therrien, 12 AD3d 1045 [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—Scudder, P.J., Sconiers, Green and Gorski, JJ.