| People v Pett |
| 2010 NY Slip Op 05443 [74 AD3d 1891] |
| June 18, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gary Pett,Appellant. |
—[*1] John H. Crandall, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel), forrespondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered June 5,2008. The judgment convicted defendant, upon his plea of guilty, of robbery in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toHerkimer County Court for further proceedings in accordance with the following Memorandum:On appeal from a judgment convicting him, upon his plea of guilty, of robbery in the seconddegree (Penal Law § 160.10 [2] [b]), defendant contends that County Court erred inenhancing the sentence by imposing restitution inasmuch as restitution was not included in theplea agreement. We agree (see People vHunter, 72 AD3d 1536 [2010]). We therefore modify the judgment by vacating thesentence, and we remit the matter to County Court to impose the promised sentence or to afforddefendant the opportunity to withdraw his plea. As noted by the Court of Appeals in People v Maliszewski (13 NY3d756 [2009]), "plea withdrawal can put the defendant in the position he was in prior toadmitting guilt" (id. at 757). If the court elects to afford defendant the opportunity towithdraw his plea, and defendant chooses not to do so, the court may sentence defendant to anysentence authorized by law. If that sentence includes restitution, defendant is entitled to arestitution hearing if he so requests. Defendant failed to preserve for our review his contentionthat the court should have recused itself (see People v Lebron, 305 AD2d 799 [2003],lv denied 100 NY2d 583 [2003]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).The sentence, absent the imposition of restitution, is not unduly harsh or severe.Present—Scudder, P.J., Peradotto, Carni, Lindley and Sconiers, JJ.