People v Rossetti

2008 NY Slip Op 07698 [55 AD3d 637]

October 7, 2008

Appellate Division, Second Department

As corrected through Wednesday, December 10, 2008

The People of the State of New York, Respondent, v RaymondRossetti, Appellant.

—[*1]Susan M. Caplin, Mount Kisco, N.Y., for appellant, and appellant pro se.

Adam B. Levy, District Attorney, Carmel, N.Y. (Mary Jane MacCrae of counsel), forrespondent.

Appeal by the defendant from a judgment of the County Court, Putnam County (R.E. Miller, J.),rendered January 5, 2005, convicting him of assault in the first degree and driving while intoxicated,upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as somodified, the judgment is affirmed, and the matter is remitted to County Court, Putnam County, forfurther proceedings consistent herewith.

The defendant pleaded guilty to assault in the first degree and driving while intoxicated in exchangefor, inter alia, promised concurrent sentences of 10 years' imprisonment and 21/3 to 7years' imprisonment, respectively. At sentencing, the County Court imposed a fine of $10,000 on thedefendant's plea of guilty to the crime of driving while intoxicated. On appeal, the defendant argues thatthe court erred in enhancing his sentence with a fine that was not part of his plea agreement withoutaffording him the opportunity to withdraw his plea. The People correctly concede this was error. TheCounty Court erred in enhancing the defendant's sentence with a fine that was not part of his negotiatedplea (see People v Sudbrink, 35 AD3d635 [2006]; People v Sauer, 8AD3d 302 [2004]; People v Fulton, 238 AD2d 439 [1997]; People v McKane,227 AD2d 503 [1996]). Accordingly, the defendant's sentence must be vacated and the matterremitted to the County Court, Putnam County, for further proceedings consistent herewith. Since theimposition of a fine is discretionary, not mandatory (see Vehicle and Traffic Law § 1193[1] [c] [ii]; People v Sudbrink, 35 AD3d635 [2006]), we do not limit the remedy upon remittitur to affording the defendant an opportunityto withdraw his plea. Rather, the County Court may, in the exercise of its discretion, either impose thesentence [*2]bargained for (i.e., vacate the fine) or afford the defendantan opportunity to withdraw his plea (see People v Selikoff, 35 NY2d 227 [1974]; People v Nugent, 31 AD3d 976[2006]; People v Kostka, 292 AD2d 634 [2002]; People v Elliot, 204 AD2d 565[1994]).

In his supplemental pro se brief, the defendant also argues that he was denied the effectiveassistance of counsel. The defendant's waiver of his right to appeal precludes appellate review of hiscontentions that he was denied effective assistance of counsel except to the extent that the allegedineffective assistance affected the voluntariness of his plea (see People v Lopez, 6 NY3d 248 [2006]; People v Perez, 51 AD3d 1043[2008]). Here, the only contention regarding the voluntariness of the defendant's plea is defensecounsel's alleged failure to object to the enhanced sentence. However, review of the record reveals thatdefense counsel did, in fact, object to the enhanced sentence. Otherwise, the defendant received anadvantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel(see People v Ford, 86 NY2d 397 [1995]; People v Boodhoo, 191 AD2d 448[1993]). Thus, the defendant was not denied the effective assistance of counsel.

The defendant's remaining contentions are without merit. Spolzino, J.P., Ritter, Santucci and Carni,JJ., concur.