| People v Brown |
| 2010 NY Slip Op 01661 [70 AD3d 1047] |
| February 23, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kingsley Brown, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Margaret E. Mainusch of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Kase, J.),rendered August 11, 2008, convicting him of assault in the first degree, upon his plea of guilty,and imposing sentence, including restitution in the sum of $9,614.54.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the provision of the sentence directing the defendant to pay restitution inthe sum of $9,614.54; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, there is no indication in the record that thedefendant's plea of guilty was involuntary (see People v Lopez, 71 NY2d 662, 666[1988]; People v Doceti, 175 AD2d 256 [1991]). At sentencing, the defendantvoluntarily withdrew his motion to vacate his plea of guilty after being advised that if the pleawere vacated he could have a trial, but the court would no longer be bound to impose thepromised sentence.
The plea minutes do not indicate that the plea of guilty was negotiated with terms thatincluded restitution. At the time of sentencing, however, the court imposed restitution of$9,614.54 as a component of the sentence. On appeal, the People consent to vacatur of therestitution provision of the sentence. Accordingly, reaching the issue in the exercise of ourinterest of justice jurisdiction (see CPL 470.15 [6]), we modify the sentence by vacatingthe provision directing the defendant to pay restitution in the sum of $9,614.54 so as to conformto the promise made to him in exchange for his plea of guilty. Skelos, J.P., Angiolillo, Chambersand Lott, JJ., concur.