| People v Gantt |
| 2009 NY Slip Op 05034 [63 AD3d 1379] |
| June 18, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark W.Gantt, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered July 10, 2008, convicting defendant upon his plea of guilty of two counts of the crimeof burglary in the second degree.
In satisfaction of a 21-count indictment and pursuant to a negotiated agreement, defendantpleaded guilty to two counts of burglary in the second degree, waived his right to appeal, andwas sentenced as a second violent felony offender to concurrent prison terms of 12 yearsfollowed by five years of postrelease supervision. At sentencing, County Court also ordereddefendant to pay restitution in the amount of $500. Defendant now appeals, challenging thepropriety of County Court's order of restitution.
Preliminarily, under the circumstances presented, defendant's challenge to the order ofrestitution is not precluded by his waiver of the right to appeal (see People v Durant, 41 AD3d976, 977 [2007]). Turning to the merits, "[w]here . . . a plea agreement doesnot include mention of restitution, a defendant must be given the opportunity to either withdrawhis plea or accept the greater sentence of restitution" (People v Snyder, 23 AD3d 761, 762 [2005] [internal quotationmarks and citation omitted]; see Peoplev McDowell, 56 AD3d 955, 956 [2008]; People v Sawyer, 55 AD3d 949, 951 [2008]). Here, a review of theplea colloquy and the sentencing minutes reveals that no mention of restitution was made untilthe sentence was pronounced. [*2]Contrary to the People'sassertion, defendant's failure to object to the imposition of restitution at the time of sentencing isnot fatal to his claim (see People v McDowell, 56 AD3d at 956; People vSnyder, 23 AD3d at 763). Accordingly, in light of County Court's failure to afford defendantthe opportunity to either withdraw his plea or accept the enhanced sentence of restitution, thismatter must be remitted for that purpose (see People v McDowell, 56 AD3d at 956;People v Sawyer, 55 AD3d at 951). Alternatively, the court may impose the sentencethat was promised in the plea agreement (see People v Snyder, 23 AD3d at 763; People v Toms, 2 AD3d 897, 898[2003]). In the event that restitution is ordered, a hearing should be conducted as to theappropriate amount (see People v Sawyer, 55 AD3d at 951; People v Tehonica, 46 AD3d 942,943 [2007]; People v Snyder, 23 AD3d at 763).
Rose, Kane, Kavanagh and Garry, JJ., concur. Ordered that the judgment is modified, on thelaw, by vacating the sentence imposed; matter remitted to the County Court of Clinton Countyfor further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.