| People v Tehonica |
| 2007 NY Slip Op 09626 [46 AD3d 942] |
| December 6, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Anthony J.Tehonica, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Laurie L. Paro of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered September 5, 2006, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a weapon in the third degree.
Defendant was charged with assault in the second degree and criminal possession of aweapon in the third degree in connection with a bar fight where he struck an individual with apool cue. During the charge conference following the conclusion of the proof at trial, CountyCourt denied defendant's request for a justification charge. Defendant then pleaded guilty toattempted criminal possession of a weapon in the third degree in exchange for a prison sentenceof 1½ to 3 years, with a recommendation of shock incarceration. The court imposed thatsentence, but also ordered defendant to pay $10,889.40 in restitution. Defendant appeals.
By pleading guilty, defendant waived his right to challenge County Court's ruling on hisrequest for a justification charge (see People v Hansen, 95 NY2d 227, 230-231 [2000];People v Thompson, 287 AD2d 794, 796 [2001], lv denied 97 NY2d 688[2001]). This issue, which concerns an evidentiary ruling not a jurisdictional or constitutionalmatter, does not survive defendant's guilty plea (see People v Hansen, 95 NY2d at230-231).
The People concede that restitution was not part of the plea agreement. Consequently, [*2]defendant should have been given the opportunity to eitherwithdraw his plea or accept the enhanced sentence, which included restitution (see People v Snyder, 23 AD3d761, 762 [2005]; People vHarrington, 3 AD3d 737, 739 [2004]). We remit for that purpose. If restitution isordered, a hearing should be held regarding the appropriate amount (see People v Snyder,23 AD3d at 763).
Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofSt. Lawrence County for further proceedings not inconsistent with this Court's decision; and, asso modified, affirmed.