| People v Ortega |
| 2009 NY Slip Op 02815 [61 AD3d 705] |
| April 7, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Francisco Ortega, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Lauren Del Giorno of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.),rendered August 28, 2007, convicting him of robbery in the first degree, robbery in the seconddegree (two counts), burglary in the first degree (two counts), and menacing in the third degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is modified, on the law, the sentence is vacated, and the matter isremitted to the County 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, theplea minutes in this case do not indicate that the plea of guilty was negotiated with terms thatincluded restitution (see People vKegel, 55 AD3d 625 [2008]; People v Henderson, 44 AD3d 873 [2007]). Accordingly, atsentencing, the defendant should have been given an opportunity either to withdraw his plea orto accept the enhanced sentence that included both restitution and a prison sentence (see People v Kegel, 55 AD3d 625[2008]; People v Henderson, 44AD3d 873 [2007]). Since the defendant was not afforded this opportunity, the matter mustbe remitted to the County Court, Nassau County, for that purpose, or for the imposition of theagreed-upon sentence. Rivera, J.P., Dillon, Miller, Balkin and Leventhal, JJ., concur.