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 NY3d 483, 486-487; People v Esquivel, 100 AD3d 652; People v Doris, 64 AD3d 813; People v Delair, 6 AD3d 1152). Although the defendant's contention is unpreserved for appellate review (see People v Miller, 128 AD3d 855; People v Woods, 110 AD3d 748; People v Jerome, 110 AD3d 739, 740), 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.
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, 486โ487, 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.
Pigott2d Dept.: 100 A.D.3d 652, 953 N.Y.S.2d 163 (Nassau) Pigott, J.Denied.
The court erred in directing the defendant to make restitution, as there is no indication in the plea minutes that the defendant's plea of guilty was negotiated with terms that included restitution. Under the circumstances of this case, and in accordance with the sole remedy sought by the defendant with respect to this claim, we deem it appropriate to vacate the direction that he 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. Sheats, 138 A.D.3d 894, 894โ895, 28 N.Y.S.3d 324 ; 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 652, 652โ653, 953 N.Y.S.2d 163 ; People v. Bruno, 73 A.D.3d 941, 942, 900 N.Y.S.2d 447 ). The defendant received the minimum authorized term of imprisonment and postrelease supervision, so we have no authority to reduce those components of his sentence in the interest of justice (see People v. Barber, 106 A.D.3d 1533, 1534, 964 N.Y.S.2d 450 ; People v. Fiorello, 97 A.D.3d 763, 763, 947 N.Y.S.2d 909 ; People v. Doumbia, 75 A.D.3d 422, 422, 903 N.Y.S.2d 231 ).
The County Court improperly enhanced the defendant's sentence with a fine that was not part of the negotiated plea agreement (see People v. Legette, 131 A.D.3d 546, 547, 14 N.Y.S.3d 697 ; People v. Rossetti, 55 A.D.3d 637, 865 N.Y.S.2d 318 ; People v. Fulton, 238 A.D.2d 439, 440, 657 N.Y.S.2d 348 ; People v. McKane, 227 A.D.2d 503, 504, 643 N.Y.S.2d 353 ). The sole relief requested by the defendant is vacatur of the provision of his sentence imposing a fine, and the People consent to that relief. Under the circumstances of this case, we deem it appropriate to vacate the provision of the defendant's sentence imposing a fine, 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 652, 653, 953 N.Y.S.2d 163 ; People v. Bruno, 73 A.D.3d 941, 942, 900 N.Y.S.2d 447 ; see also People v. Cote, 265 A.D.2d 681, 697 N.Y.S.2d 184 ).ENG, P.J., HALL, SGROI and DUFFY, JJ., concur.
The County Court improperly enhanced the defendant's sentence with a fine that was not part of the negotiated plea agreement (see People v Legette, 131 AD3d 546, 547; People v Rossetti, 55 AD3d 637; People v Fulton, 238 AD2d 439, 440; People v McKane, 227 AD2d 503, 504). The sole relief requested by the defendant is vacatur of the provision of his sentence imposing a fine, and the People consent to that relief. Under the circumstances of this case, we deem it appropriate to vacate the provision of the defendant's sentence imposing a fine, 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 AD3d 994, 995; People v Thompson, 105 AD3d 1067; People v Esquivel, 100 AD3d 652, 653; People v Bruno, 73 AD3d 941, 942; see also People v Cote, 265 AD2d 681). ENG, P.J., HALL, SGROI and DUFFY, JJ., concur.
The People correctly concede that restitution was not part of the plea agreement. Although a court is free to reserve the right to order restitution as part of a plea agreement, the plea minutes in this case do not indicate that the plea of guilty was negotiated with terms that included restitution (see People v. Patterson, 123 A.D.3d 946, 999 N.Y.S.2d 157 ; People v. Pettress, 109 A.D.3d 555, 555โ556, 970 N.Y.S.2d 466 ; People v. Poznanski, 105 A.D.3d 775, 776, 962 N.Y.S.2d 639 ; People v. Suarez, 103 A.D.3d 673, 959 N.Y.S.2d 272 ; People v. Esquivel, 100 A.D.3d 652, 953 N.Y.S.2d 163 ). Accordingly, we vacate the sentence imposed and the restitution judgment order, and remit the matter to the County Court (see People v. Molinaro, 126 A.D.3d 726, 727, 5 N.Y.S.3d 238 ). Upon remittal, the court should consider whether to impose the sentence called for in the plea agreement. If the court decides not to impose the sentence, then it must give the defendant an opportunity to withdraw his plea of guilty or to accept the enhanced sentence that includes both restitution and a prison sentence (see People v. Patterson, 123 A.D.3d at 946, 999 N.Y.S.2d 157 ; People v. Pettress, 109 A.D.3d at 556, 970 N.Y.S.2d 466 ).
The People correctly concede that restitution was not part of the plea agreement. Although a court is free to reserve the right to order restitution as part of a plea agreement, the plea minutes in this case do not indicate that the plea of guilty was negotiated with terms that included restitution ( see People v. Patterson, 123 A.D.3d 946, 999 N.Y.S.2d 157; People v. Pettress, 109 A.D.3d 555, 555โ556, 970 N.Y.S.2d 466; People v. Poznanski, 105 A.D.3d 775, 776, 962 N.Y.S.2d 639; People v. Suarez, 103 A.D.3d 673, 959 N.Y.S.2d 272; People v. Esquivel, 100 A.D.3d 652, 953 N.Y.S.2d 163). Accordingly, we vacate the sentence imposed and the restitution judgment order, and remit the matter to the County Court ( see People v. Molinaro, 126 A.D.3d 726, 727, 5 N.Y.S.3d 238). Upon remittal, the court should consider whether to impose the sentence called for in the plea agreement. If the court decides not to impose the sentence, then it must give the defendant an opportunity to withdraw his plea of guilty or to accept the enhanced sentence that includes both restitution and a prison sentence ( see People v. Patterson, 123 A.D.3d at 946, 999 N.Y.S.2d 157; People v. Pettress, 109 A.D.3d at 556, 970 N.Y.S.2d 466). Lastly, the defendant argues that the sentencing court erred in levying three $500 separate fines for each count of aggravated unlicensed operation in the first degree. The defendant pleaded guilty to, inter alia, a violation of Vehicle and Traffic Law ยง 511(3) (three counts).
The People correctly concede that the County Court erred in imposing restitution, since 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 on appeal is modification of his resentence to vacate the provision directing him to make restitution, and the People consent to the resentence being so modified. Under the circumstances of this case, we deem it appropriate to vacate the provision of the defendant's resentence directing him to make restitution (see People v. Thompson, 105 A.D.3d 1067, 963 N.Y.S.2d 406 ; People v. Esquivel, 100 A.D.3d 652, 652โ653, 953 N.Y.S.2d 163 ; People v. Bruno, 73 A.D.3d 941, 942, 900 N.Y.S.2d 447 ).
The People correctly concede that the County Court erred in imposing restitution, since 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 on appeal is modification of his resentence to vacate the provision directing him to make restitution, and the People consent to the resentence being so modified. Under the circumstances of this case, we deem it appropriate to vacate the provision of the defendant's resentence directing him to make restitution ( see People v. Thompson, 105 A.D.3d 1067, 963 N.Y.S.2d 406; People v. Esquivel, 100 A.D.3d 652, 652โ653, 953 N.Y.S.2d 163; People v. Bruno, 73 A.D.3d 941, 942, 900 N.Y.S.2d 447).