Opinion
1371 KA 14-00380.
12-31-2015
The PEOPLE of the State of New York, Respondent, v. Henry S. SPENCER, IV, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.
Lori Pettit Rieman, District Attorney, Little Valley (Amber L. Kerling of Counsel), for Respondent.
Opinion
MEMORANDUM:
On appeal from a judgment of conviction convicting him upon his plea of guilty of two counts of burglary in the third degree (Penal Law § 140.20), defendant contends that his waiver of the right to appeal is not valid, and he challenges the severity of his sentence. We agree with defendant that his waiver of the right to appeal is invalid “inasmuch as the minimal perfunctory inquiry made by County Court was insufficient to ‘establish that [he] understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (People v. Finch, 120 A.D.3d 1524, 1525, 992 N.Y.S.2d 651, quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see People v. Hunt, 125 A.D.3d 1275, 1276, 999 N.Y.S.2d 789). We nevertheless conclude that the sentence is not unduly harsh or severe.
We agree with defendant, however, that the court erred in enhancing his sentence by imposing restitution without affording him the opportunity to withdraw his plea, inasmuch as restitution was not a part of the plea agreement (see People v. Pickett, 90 A.D.3d 1526, 1527, 935 N.Y.S.2d 758). Even assuming, arguendo, that defendant executed a valid waiver of the right to appeal, defendant's challenge to the imposition of restitution would not be encompassed by the waiver inasmuch as restitution was not included in the terms of the plea agreement (see People v. Tessitore, 101 A.D.3d 1621, 1622, 956 N.Y.S.2d 372, lv. denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538). Although defendant did not object to the imposition of restitution at sentencing and thus failed to preserve that contention for our review (see Pickett, 90 A.D.3d at 1527, 935 N.Y.S.2d 758), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 460.153[c] ). 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 (see People v. Wilson, 125 A.D.3d 1303, 1303–1304, 1 N.Y.S.3d 718; Pickett, 90 A.D.3d at 1527, 935 N.Y.S.2d 758).
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 Cattaraugus County Court for further proceedings.
SCUDDER, P.J., CENTRA, CARNI, VALENTINO, and DeJOSEPH, JJ., concur.