People v Craig D. Neu

People v Neu 2003 NY Slip Op 18930 [1 AD3d 798] November 26, 2003 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

The People of the State of New York, Respondent,
v
Craig D. Neu, Sr., Appellant.

— Mugglin, J. Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered February 4, 2002, convicting defendant upon his plea of guilty of the crime of aggravated sexual abuse in the first degree.

In full satisfaction of a six-count indictment, defendant pleaded guilty to one count of aggravated sexual abuse in the first degree. Pursuant to the plea agreement, defendant was sentenced to a prison term of 10 years and a five-year period of postrelease supervision, and he was required to register as a sex offender. Although not part of the agreed-upon sentence, County Court further ordered defendant to pay restitution in the amount of $10,007.06 and a mandatory surcharge of $210. Defendant's sole argument on this appeal is that County Court erred in imposing restitution and the mandatory surcharge without first affording him an opportunity to withdraw his plea.

While we hold that, given the mandatory nature of the surcharge, a defendant need not be advised, prior to the entry of his or her plea, that it is part of the sentence (see People v Prihett, 279 AD2d 335 [2001]), we have also held that "[w]here, as here, a plea agreement does not include mention of restitution, a defendant must be given the opportunity to either withdraw his [or her] plea or accept the greater sentence of restitution" (People v Toms, 293 AD2d 768, 769 [2002]; see People v Goss, 286 AD2d 180, 183 [2001]; People v Nichols, 276 AD2d 832 [2000]). The record makes clear, and the People concede, that County Court did not advise defendant of his rights in this regard. Accordingly, the matter must be remitted to County Court to impose the sentence promised or afford defendant the opportunity to withdraw his plea (see People v Nichols, supra at 832).

Cardona, P.J., Crew III, Peters and Kane, JJ., concur. Ordered that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Chemung County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.