Opinion
2012-01-31
The PEOPLE of the State of New York, Respondent, v. Brendan J. RHODES, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Keith A. Slep, District Attorney, Belmont, for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Keith A. Slep, District Attorney, Belmont, for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [4] ). By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that his plea was not knowingly, voluntarily and intelligently entered ( see People v. Diaz, 62 A.D.3d 1252, 878 N.Y.S.2d 529, lv. denied 12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086), as well as his challenge to the factual sufficiency of the plea allocution ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Dowdell, 35 A.D.3d 1278, 1279, 825 N.Y.S.2d 865, lv. denied 8 N.Y.3d 921, 834 N.Y.S.2d 512, 866 N.E.2d 458). This case does not fall within the rare exception to the preservation requirement inasmuch as the plea allocution does not “cast[ ] significant doubt upon the defendant's guilt or otherwise call[ ] into question the voluntariness of the plea” ( Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5, see People v. Neal, 56 A.D.3d 1211, 867 N.Y.S.2d 612, lv. denied 12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849).
By failing to object to the imposition of restitution at sentencing, which was not a part of the plea agreement, defendant failed to preserve for our review his contention that County Court erred in enhancing the sentence by imposing restitution at sentencing without affording him the opportunity to withdraw the plea ( see People v. Delair, 6 A.D.3d 1152, 775 N.Y.S.2d 664). We nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ), and we conclude 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 ( see People v. Therrien, 12 A.D.3d 1045, 1046, 784 N.Y.S.2d 771). In addition, defendant failed to preserve for our review his contention that the record is insufficient to support the amount of restitution ordered ( see generally People v. Cooke, 21 A.D.3d 1339, 804 N.Y.S.2d 516). We further exercise our power to review that contention as a matter of discretion in the interest of justice, however, and we conclude that the court erred in failing to conduct a hearing to determine the amount of restitution ( see id.). 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.
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 Allegany County Court for further proceedings.