People v. Guadalupe

Full title: The People of the State of New York, respondent, v. Jose A. Guadalupe…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Jun 17, 2015

2015 N.Y. Slip Op. 5206 (N.Y. App. Div. 2015)

Opinion

2010-03567 2010-03568

06-17-2015

The People of the State of New York, respondent, v. Jose A. Guadalupe, appellant. (Ind. Nos. 09-00513, 09-00800)

Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Seth B. Altman and Andrew R. Kass of counsel), for respondent.

PETER B. SKELOS, J.P.

THOMAS A. DICKERSON

ROBERT J. MILLER

SYLVIA O. HINDS-RADIX, JJ.

Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant.

David M. Hoovler, District Attorney, Middletown, N.Y. (Seth B. Altman and Andrew R. Kass of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from two judgments of the County Court, Orange County (De Rosa, J.), both rendered April 8, 2010, convicting him of manslaughter in the first degree under Indictment No. 09-00513, and burglary in the second degree under Indictment No. 09-00800, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are modified, on the law, by vacating the sentences imposed; as so modified, the judgments are affirmed, and the matters are remitted to the County Court, Orange County, for resentencing in accordance herewith.

The defendant's contention that the County Court failed to pronounce the amount of restitution at sentencing in violation of CPL 380.20 is not foreclosed by his waiver of the right to appeal or his failure to preserve the issue (see People v Nieves, 2 NY3d 310, 315; People v Samms, 95 NY2d 52, 56; People v Lawson, 124 AD3d 1249; People v Volfson, 69 AD3d 1123, 1125; People v Pump, 67 AD3d 1041, 1042). Since the County Court failed to pronounce the sentences of restitution in open court, the sentences must be vacated and the matter remitted to the County Court, Orange County, for resentencing in accordance with CPL 380.20 (see Penal Law § 60.27[1]; People v Guerrero, 12 NY3d 45, 47; People v Fuller, 57 NY2d 152, 158-159; People v Rose, 120 AD3d 593, 594; People v McGhee, 96 AD3d 786; People v Bauer, 229 AD2d 502, 502-503).

SKELOS, J.P., DICKERSON, MILLER and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court