| People v Muhammad |
| 2008 NY Slip Op 00718 [47 AD3d 951] |
| January 29, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kashon Muhammad, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind Gray and Karla Lato ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.),rendered February 24, 2006, convicting him of criminal sale of a controlled substance in the thirddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is reversed, on the law, the sentence is vacated, and the matter isremitted to the County Court, Suffolk County, to afford the defendant an opportunity to withdrawhis plea of guilty.
The County Court imposed an enhanced sentence on the grounds that the defendant did notreport to the Probation Department and failed to appear on the scheduled sentencing date. Thetranscript of the plea proceeding does not indicate that the defendant was told, nor can it beimplied therefrom that he understood, that if he failed to maintain contact with the ProbationDepartment or failed to appear on the date scheduled for sentencing, the County Court couldimpose a sentence more severe than the one to which he had agreed at the time of his plea ofguilty. Although the defendant is not entitled to specific performance of the plea agreement, atleast as to the sentence that was promised (see People v Stewart, 32 AD3d 403 [2006]; People v Rubendall, 4 AD3d 13,19 [2004]), under the circumstances of this case an enhanced sentence should not have beenimposed without affording the defendant an opportunity to withdraw his plea (see People v Brothers, 20 AD3d486, 486-487 [2005]; People v Calendar, 227 AD2d 639, 639-640 [1996]; Peoplev Hodge, 207 AD2d 845 [1994]).
Contrary to the People's contention, the defendant's waiver of his right to appeal does [*2]not extend to the imposition of the enhanced sentence (seePeople v Dickerson, 208 AD2d 946 [1994]; People v Wimple, 198 AD2d 464, 465[1993]; People v Arbil C., 190 AD2d 856, 857 [1993]). Spolzino, J.P., Santucci, Dillonand Balkin, JJ., concur.