| People v Hunter |
| 2010 NY Slip Op 03564 [72 AD3d 1536] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ian Hunter,Appellant. |
—[*1] Thomas E. Moran, District Attorney, Geneseo (Eric R. Schiener of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Dennis S. Cohen, J.), renderedSeptember 6, 2007. The judgment convicted defendant, upon his plea of guilty, of burglary in thesecond degree.
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 Livingston County Court for furtherproceedings in accordance with the following memorandum: Defendant appeals from a judgmentconvicting him upon his plea of guilty of burglary in the second degree (Penal Law §140.25 [2]). We agree with defendant that County Court erred in enhancing the sentence byimposing restitution at sentencing inasmuch as restitution was not included as part of the pleaagreement. Although defendant failed to preserve that contention for our review (see People v Cooke, 21 AD3d1339 [2005]), we nevertheless exercise our power to review it as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]). We conclude that the court should haveafforded defendant the opportunity to withdraw his plea prior to ordering him to pay restitution(see Cooke, 21 AD3d 1339 [2005]; People v Therrien, 12 AD3d 1045 [2004]). We therefore modifythe judgment by vacating the sentence, and we remit the matter to County Court to impose thepromised sentence or to afford defendant the opportunity to withdraw his plea.Present—Scudder, P.J., Sconiers, Green and Gorski, JJ.