| People v Henderson |
| 2007 NY Slip Op 07861 [44 AD3d 873] |
| October 16, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Antoine Henderson, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.),rendered March 23, 2006, convicting him of robbery in the third degree, upon his plea of guilty,and imposing an indeterminate sentence of one to three years' imprisonment and restitution.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed thereon;as so modified, the judgment is affirmed, and the matter is remitted to the County Court,Dutchess County, for further proceedings consistent herewith.
Although a court is, of course, free to reserve in a plea bargain the right to order restitution,the guilty plea in this case was negotiated with terms that did not include restitution.Accordingly, at sentencing, the defendant should have been given an opportunity either towithdraw his plea or to accept the enhanced sentence of restitution and a prison sentence (seePeople v Cisco, 208 AD2d 643 [1994]; People v Cowan, 168 AD2d 509 [1990];People v Lopez, 135 AD2d 739, 739-740 [1987]). Since he was not afforded thisopportunity, the matter is now remitted for that purpose. Crane, J.P., Ritter, Fisher, Covello andDickerson, JJ., concur.