| People v Ignatowski |
| 2010 NY Slip Op 01266 [70 AD3d 1472] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelIgnatowski, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered October 1, 2008. The judgment convicted defendant, upon his plea of guilty, of failureto register as a sex offender (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by vacating the sentence and as modified thejudgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for furtherproceedings in accordance with the following memorandum: Defendant appeals from a judgmentconvicting him upon his guilty plea of two counts of failure to register as a sex offender(Correction Law § 168-f [3]). Defendant failed to preserve for our review his contentionthat Supreme Court erred in imposing a surcharge and fees (see CPL 470.05 [2]; People v King, 57 AD3d 1495[2008]), and we decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]). Defendant further contends that thecourt erred in imposing an enhanced sentence without affording him an opportunity to withdrawhis plea. Although defendant failed to preserve his contention for our review by failing to objectto the enhanced sentence or to move to withdraw his plea or to vacate the judgment of conviction(see People v Fortner, 23 AD3d1058 [2005]; People v Sundown, 305 AD2d 1075 [2003]), we nevertheless exerciseour power to review defendant's contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). The record establishes that defendant was not informed at thetime of the plea that the court could impose an enhanced sentence in the event that he failed toappear at sentencing (see Fortner, 23 AD3d 1058 [2005]; Sundown, 305 AD2d at1076; People v Ortiz, 244 AD2d 960, 961 [1997]). We therefore modify the judgment byvacating the sentence, and we remit the matter to Supreme Court for resentencing. The sentencepromised in accordance with the plea bargain, however, is illegal. Thus, the court upon remittalmay impose a lesser sentence than that promised and, in that event, the court must "entertain amotion by the People, should the People be so disposed, to vacate the plea and set aside theconviction in its entirety" (People v Irwin, 166 AD2d 924, 925 [1990]; see People v Tuszynski, 57 AD3d1380, 1381 [2008]). "Further, should the People be so disposed, they may withdraw theirconsent to the waiver of indictment" (People v Hamilton, 49 AD3d 1163, 1164-1165 [2008]; seeCPL 195.10 [1] [c]). Alternatively, the court upon remittal may impose a [*2]greater sentence than that promised and, in that event, the courtmust afford defendant the opportunity to withdraw his plea (see generally People vMartin, 278 AD2d 743, 744 [2000]). In light of our determination, we do not addressdefendant's remaining contentions. Present—Scudder, P.J., Centra, Fahey, Carni and Pine,JJ.