Opinion
04-13-2016
The PEOPLE, etc., respondent, v. John SHEATS, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Collins, J.), rendered February 17, 2015, convicting him of burglary in the third degree (two counts), upon his plea of guilty, imposing sentence, including a direction that the defendant make restitution in the sum of $2,800, and issuing two restitution judgment orders.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the provision of the sentence directing the defendant to make restitution in the sum of $2,800, and by vacating the two restitution judgment orders; as so modified, the judgment is affirmed.
The defendant's waiver of the right to appeal, even if effective, does not foreclose review of his contention that the Supreme Court violated the plea agreement by directing him to pay restitution (see People v. Johnson, 14 N.Y.3d 483, 486–487, 903 N.Y.S.2d 299, 929 N.E.2d 361 ; People v. Esquivel, 100 A.D.3d 652, 953 N.Y.S.2d 163 ; People v. Doris, 64 A.D.3d 813, 881 N.Y.S.2d 674 ; People v. Delair, 6 A.D.3d 1152, 775 N.Y.S.2d 664 ). Although the defendant's contention is unpreserved for appellate review (see People v. Miller, 128 A.D.3d 855, 7 N.Y.S.3d 912 ; People v. Woods, 110 A.D.3d 748, 972 N.Y.S.2d 97 ; People v. Jerome, 110 A.D.3d 739, 740, 972 N.Y.S.2d 102 ), we reach the issue as a matter of discretion in the interest of justice.
The People correctly concede that the Supreme Court erred in directing restitution, as there is no indication in the plea minutes that the defendant's plea of guilty was negotiated with terms that included restitution. The sole relief requested by the defendant is modification of his sentence to vacate the provision directing restitution, and the People consent to the sentence being so modified. Under the circumstances of this case, we deem it appropriate to vacate the provision of the defendant's sentence directing him to make restitution and the two restitution judgment orders, so as to conform the sentence imposed to the promise made to the defendant in exchange for his plea of guilty (see People v. Nilsen, 129 A.D.3d 994, 995, 11 N.Y.S.3d 255 ; People v. Thompson, 105 A.D.3d 1067, 963 N.Y.S.2d 406 ; People v. Esquivel, 100 A.D.3d at 652–653, 953 N.Y.S.2d 163 ;People v. Bruno, 73 A.D.3d 941, 942, 900 N.Y.S.2d 447 ).
ENG, P.J., MASTRO, LEVENTHAL and MILLER, JJ., concur.