| People v Maliszewski |
| 2009 NY Slip Op 02198 [60 AD3d 1435] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Peter J.Maliszewski, Appellant. |
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Appeal from a resentence of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedJune 26, 2008. Defendant was resentenced to an indeterminate term of incarceration of 3 to 6years and restitution upon his conviction of burglary in the third degree.
It is hereby ordered that the resentence so appealed from is affirmed.
Memorandum: Defendant appeals from a resentence imposed upon remittal of this matter toCounty Court (People v Maliszewski, 49 AD3d 1165 [2008]). In the prior appeal from ajudgment convicting defendant upon his plea of guilty of burglary in the third degree (Penal Law§ 140.20), we agreed with defendant that the court erred in "enhancing his sentence ofincarceration based upon his failure to pay restitution arising from previous convictions" (49AD3d at 1165). We further concluded that the court "erred in failing to conduct a hearing on theissue of restitution" for the instant offense (id. at 1166). We therefore modified thejudgment by vacating the sentence, and we "remit[ted] the matter to County Court to resentencedefendant to an indeterminate term of incarceration of 2 to 4 years and to impose restitution forthe instant offense following a hearing to determine the amount of restitution or to afforddefendant the opportunity to withdraw his plea" (id.).
The record of the original plea proceeding establishes that counsel had discussed a pleaagreement of 2½ to 5 years and that the court had not yet agreed to any plea proposal whendefendant asked the court to impose an indeterminate term of incarceration of 2 to 4 years in theevent that he paid one half of the amount of restitution that he owed with respect to previousconvictions. The court stated that it would sentence defendant as requested if he paid theagreed-upon restitution within three weeks and that, if he did not pay that restitution, the courtwould impose an indeterminate term of incarceration of 3 to 6 years. Based upon defendant'sfailure to pay any restitution, the court imposed an indeterminate term of incarceration of 3 to 6years and restitution for the instant offense.
Contrary to defendant's contention, we did not direct the court upon remittal to afforddefendant the option to be resentenced to an indeterminate term of incarceration of 2 to 4years with the proper amount of restitution for the instant offense only, or to withdraw his plea.[*2]Rather, as the court properly determined upon remittal, it wasfor the court to determine whether to resentence defendant to an indeterminate term ofincarceration of 2 to 4 years or to afford defendant the opportunity to withdraw his plea (seegenerally People v Waggoner, 53 AD3d 1143, 1144 [2008]; People v Appleberry, 34AD3d 1257 [2006]; People v Robinson, 21 AD3d 1356, 1357 [2005]). The courtexercised its option to afford defendant the opportunity to withdraw his plea, thereby in effect"afford[ing] defendant the option of either withdrawing his guilty plea and proceeding to trial onthe original indictment or accepting [a] proper sentence. Defendant, by declining to withdraw hisguilty plea, effectively chose the latter option" (People v D'Avolio, 176 AD2d 1245[1991], lv denied 79 NY2d 855 [1992]). The court thereafter properly resentenceddefendant as a second felony offender to an indeterminate term of incarceration of 3 to 6 years(see Penal Law § 70.06 [3] [d]; [4] [b]; D'Avolio, 176 AD2d 1245 [1991]).
All concur except Centra and Fahey, JJ., who dissent and vote to reverse in accordance withthe following memorandum.
Centra and Fahey, JJ. (dissenting). We respectfully dissent because we cannot agree with themajority that, pursuant to the decision of this Court in the prior appeal (People vMaliszewski, 49 AD3d 1165 [2008]), County Court upon remittal properly sentenceddefendant to an indeterminate term of incarceration of 3 to 6 years after he declined to withdrawhis plea. We set forth in our prior decision that the original plea agreement provided thatdefendant would be sentenced to an indeterminate term of incarceration of 2 to 4 years if he paidhalf the amount of restitution that remained unpaid from previous convictions and "that the termof incarceration would otherwise be 3 to 6 years" (id. at 1165). When it appeared atsentencing that defendant had failed to pay the requisite amount of restitution, the court imposedan indeterminate term of incarceration of 3 to 6 years and restitution for the instant offense(id.). This Court determined that it was illegal to enhance the sentence of incarcerationbased upon defendant's failure to pay restitution arising from previous convictions, and weremitted the matter to County Court with the directive quoted in the majority's decision(id. at 1166).
In our view, the language of our prior decision establishes that the intent was to remit thematter to County Court for the purpose of imposing an indeterminate term of incarceration of 2to 4 years and restitution in an amount to be determined following a hearing in the event thatdefendant declined to withdraw his plea. Inasmuch as we previously concluded that the term ofincarceration of 3 to 6 years originally imposed was illegal, plain logic does not support anunencumbered remittal permitting the court to impose the enhanced sentence that we concludedwas illegal. We therefore would reverse the resentence and remit the matter to County Court fora further resentencing before a different judge in accordance with our prior decision(id.). Present—Scudder, P.J., Hurlbutt, Smith, Centra and Fahey, JJ.