| People v Kegel |
| 2008 NY Slip Op 07684 [55 AD3d 625] |
| October 7, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PatrickKegel, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley of counsel; Matthew C.Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jaeger, J.),rendered June 14, 2007, convicting him of robbery in the third degree (four counts), upon his plea ofguilty, and imposing consecutive terms of imprisonment of one to three years and restitution.
Ordered that the judgment is reversed, on the law, the sentence is vacated, and the matter isremitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
Although a court is free to reserve the right to order restitution as part of a plea bargain, the pleaminutes in this case do not indicate that the plea of guilty was negotiated with terms that includedrestitution (see People v Henderson, 44AD3d 873, 873-874 [2007]). Accordingly, at sentencing, the defendant should have been givenan opportunity either to withdraw his plea or to accept the enhanced sentence of restitution and a prisonsentence (see People v Toms, 293 AD2d 768, 769 [2002]; People v Watson, 287AD2d 889, 890 [2001]; People v Cisco, 208 AD2d 643 [1994]; People v Cowan,168 AD2d 509 [1990]). Since the defendant was not afforded this opportunity, we remit the matter forthat purpose, or for the imposition of the agreed-upon sentence. Fisher, J.P., Lifson, Covello, Balkinand Belen, JJ., concur.