People v. Esquivel

15 Citing cases

  1. People v. Sirico

    135 A.D.3d 19 (N.Y. App. Div. 2015)   Cited 49 times

    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, 555–556, 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 ).

  2. People v. Williams

    120 A.D.3d 721 (N.Y. App. Div. 2014)   Cited 25 times

    The defendant likewise did not preserve for appellate review her contention that the County Court erred in ordering her to make restitution on the conviction under Superior Court Information No. 2965–11 ( see People v. Murray, 15 N.Y.3d 725, 726, 906 N.Y.S.2d 521, 932 N.E.2d 877; cf. People v. McAlpin, 17 N.Y.3d 936, 938, 936 N.Y.S.2d 666, 960 N.E.2d 435), but we reach that contention in the exercise of our interest of justice jurisdiction. A court may not impose restitution when restitution is not part of the plea agreement unless it first gives the defendant an opportunity to withdraw the plea of guilty ( see People v. Pettress, 109 A.D.3d 555, 555–556, 970 N.Y.S.2d 466; People v. Esquivel, 100 A.D.3d 652, 652, 953 N.Y.S.2d 163; People v. Gibson, 88 A.D.3d 1012, 1012, 931 N.Y.S.2d 530; People v. Kegel, 55 A.D.3d 625, 625, 867 N.Y.S.2d 96). Unlike the plea agreement made in connection with the criminal action prosecuted under Indictment No. 735–11, the defendant was never informed that restitution would be part of the plea agreement under Superior Court Information No. 2965–11. Accordingly, the court improperly imposed restitution in that case without first giving the defendant an opportunity to withdraw her plea of guilty. The parties agree that the judgment entered under Superior Court Information No. 2965–11 should be modified by deleting the provision regarding restitution, and we deem it appropriate to do so in the interest of justice ( see People v. Thompson, 105 A.D.3d 1067, 1067, 963 N.Y.S.2d 406).

  3. People v. Abdul

    112 A.D.3d 644 (N.Y. App. Div. 2013)   Cited 18 times

    Further, “except where the very power of the court is implicated, appellate challenges to the procedures utilized in determining and imposing sentence ... may effectively be waived” by a valid waiver of the right to appeal (People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 [citations omitted] ). Here, the defendant's contention implicates the procedures utilized in determining and imposing sentence rather than the power of the court or the legality of the sentence, and consequently, her contention was effectively waived by her waiver of the right to appeal ( see People v. Andre L., 18 A.D.3d 575, 576, 795 N.Y.S.2d 263; People v. Hicks, 201 A.D.2d 831, 832, 608 N.Y.S.2d 543; People v. Moquette, 200 A.D.2d 854, 606 N.Y.S.2d 820; cf. People v. Esquivel, 100 A.D.3d 652, 953 N.Y.S.2d 163). Similarly, the defendant's contention that the prosecutor, during the sentencing hearing, improperly referred to evidence dehors the record is barred by her valid waiver of the right to appeal because it involves a challenge to the procedure at sentencing and not the power of the court or the legality of the sentence ( see People v. Colucci, 94 A.D.3d 1418, 1419, 942 N.Y.S.2d 394; People v. Adams, 64 A.D.3d 1186, 1187, 881 N.Y.S.2d 751). ANGIOLILLO, J.P., HALL, AUSTIN and MILLER, JJ., concur.

  4. People v. Thompson

    105 A.D.3d 1067 (N.Y. App. Div. 2013)   Cited 16 times

    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 her sentence to vacate the provision directing her to make restitution, and the People consent to the sentence being so modified, although they assert that a mandatory surcharge must then be imposed. Under the circumstances of this case, we deem it appropriate to vacate the provision of the defendant's sentence directing her to make restitution ( see People v. Esquivel, 100 A.D.3d 652, 652–653, 953 N.Y.S.2d 163,lv. denied20 N.Y.3d 1011, 960 N.Y.S.2d 354, 984 N.E.2d 329), and remit the matter to the County Court, Suffolk County, for the imposition of the appropriate mandatory surcharge ( seePenal Law § 60.35).

  5. People v. Poznanski

    105 A.D.3d 775 (N.Y. App. Div. 2013)   Cited 13 times

    However, the County Court improperly directed the defendant to pay restitution in the sum of $570.50. Although a court is free to reserve the right to order restitution as part of a plea agreement, the plea minutes do not indicate that a plea of guilty was negotiated with terms that included restitution. Accordingly, at sentencing, the defendant should have been “given an opportunity either to withdraw his plea or to accept the enhanced sentence that included both restitution and a prison sentence” ( People v. Ortega, 61 A.D.3d 705, 706, 875 N.Y.S.2d 909;see 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,lv. denied20 N.Y.3d 1011, 960 N.Y.S.2d 354, 984 N.E.2d 329;People v. Gibson, 88 A.D.3d 1012, 931 N.Y.S.2d 530;People v. Kegel, 55 A.D.3d 625, 867 N.Y.S.2d 96;People v. Henderson, 44 A.D.3d 873, 874, 843 N.Y.S.2d 678) or for the court to impose the agreed-upon sentence.Accordingly, we vacate the sentence imposed, and remit the matter to the County Court, Nassau County, to allow the County Court to (1) impose the sentence promised to the defendant at the plea proceeding, (2) afford the defendant the opportunity to accept the previously imposed sentence, including the direction that he pay restitution in the sum of $570.50, or (3), in the absence of either of those results, permit the defendant to withdraw his plea of guilty ( see People v. Sosa–Rodriguez, 63 A.D.3d 861, 863, 880 N.Y.S.2d 709).

  6. People v. Pettress

    109 A.D.3d 555 (N.Y. App. Div. 2013)   Cited 12 times

    15 N.Y.3d 725, 726–727, 906 N.Y.S.2d 521, 932 N.E.2d 877). Although a court is free to reserve the right to order restitutionas part of a plea bargain, the plea minutes in this case do not indicate that the pleas of guilty were negotiated with terms that included restitution ( see People v. Poznanski, 105 A.D.3d 775, 776, 962 N.Y.S.2d 639,lv. denied ––– N.Y.3d ––––, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [Jun 6, 2013]; People v. Suarez, 103 A.D.3d 673, 959 N.Y.S.2d 272;People v. Ortega, 61 A.D.3d 705, 706, 875 N.Y.S.2d 909;People v. Kegel, 55 A.D.3d 625, 867 N.Y.S.2d 96;People v. Henderson, 44 A.D.3d 873, 873–874, 843 N.Y.S.2d 678). At sentencing, the defendant should have been “given an opportunity either to withdraw his plea[s] or to accept the enhanced sentence[s] that included both restitution and a prison sentence” ( People v. Ortega, 61 A.D.3d at 706, 875 N.Y.S.2d 909;see People v. Poznanski, 105 A.D.3d at 776, 962 N.Y.S.2d 639;People v. Suarez, 103 A.D.3d at 673, 959 N.Y.S.2d 272;People v. Esquivel, 100 A.D.3d 652, 953 N.Y.S.2d 163;People v. Gibson, 88 A.D.3d 1012, 931 N.Y.S.2d 530), or for the court to impose the sentences agreed upon at the plea proceedings. Accordingly, we vacate the sentences imposed, and remit the matter to the County Court, Suffolk County, to allow the County Court to (1) impose the sentences promised to the defendant at the plea proceedings, (2) afford the defendant the opportunity to accept the previously imposed sentences, including the directions that he pay restitution in the specified sums, or (3), in the absence of either of those results, permit the defendant to withdraw his pleas of guilty ( see People v. Poznanski, 105 A.D.3d at 776, 962 N.Y.S.2d 639).

  7. People v. Roberts

    139 A.D.3d 1092 (N.Y. App. Div. 2016)   Cited 11 times

    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.

  8. People v. Sheats

    138 A.D.3d 894 (N.Y. App. Div. 2016)   Cited 7 times

    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.

  9. People v. Anastasiou

    162 A.D.3d 1062 (N.Y. App. Div. 2018)   Cited 3 times

    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, 894–895, 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, 652–653, 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 ).

  10. People v. Sheats

    2016 N.Y. Slip Op. 2859 (N.Y. App. Div. 2016)

    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.