| People v McCarthy |
| 2008 NY Slip Op 08565 [56 AD3d 904] |
| November 13, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JuliaMcCarthy, Appellant. |
—[*1] Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), renderedSeptember 10, 2007, convicting defendant upon her plea of guilty of the crimes of vehicularassault in the first degree and driving while intoxicated.
Defendant waived indictment and pleaded guilty to a superior court information charging herwith vehicular assault in the first degree and driving while intoxicated. County Court thereaftersentenced her, as negotiated, to concurrent prison terms of 1 to 3 years. As an additional part ofher sentence, County Court imposed fines in the amount of approximately $6,000 and indicated itwould also require reparation pursuant to Penal Law § 60.27, in an amount to bedetermined.[FN*]Defendant now appeals, claiming that her sentence was harsh and excessive.
Generally, a challenge to the severity of a sentence is precluded by a valid waiver of appeal(see People v Getter, 52 AD3d1117, 1118 [2008]). However, as a matter of fundamental fairness, "[a] sentencing courtmay not impose a more severe sentence than one bargained for without providing defendant theopportunity to withdraw his [or her] plea of guilty" (People v [*2]Brown, 198 AD2d 901, 901 [1993]). Here, the record is devoidof any indication that defendant was advised prior to entering a plea and waiving her right toappeal that a fine would be included in her sentence or that reparation would be required.Therefore, before County Court imposed the enhanced sentence, it should have affordeddefendant the opportunity to first withdraw her plea or accept the enhanced sentence (see People v Branch-El, 12 AD3d785, 786 [2004], lv denied 4 NY3d 761 [2005]; People v Toms, 293 AD2d768 [2002]).
Cardona, P.J., Mercure, Rose, Lahtinen and Stein, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofSullivan County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.
Footnote *: This Court is aware thatreparation was ordered by County Court on July 9, 2008, as part of defendant's sentence, in theamount of $44,072.