| People v Culcleasure |
| 2010 NY Slip Op 06107 [75 AD3d 832] |
| July 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v HermanCulcleasure, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered July 30, 2008, convicting defendant upon his plea of guilty of the crime of robbery inthe second degree.
In satisfaction of a six-count indictment, defendant pleaded guilty to robbery in the seconddegree and waived his right to appeal. Under the terms of the plea agreement, defendant was tobe sentenced to 12 years in prison followed by five years of postrelease supervision. AlthoughCounty Court imposed this sentence, it also ordered that defendant pay restitution. Defendantnow appeals, asserting in his pro se brief that he should have been afforded the opportunity towithdraw his plea before County Court imposed restitution at sentencing.
We agree. Preliminarily, we note that neither defendant's appeal waiver (see People v Gordon, 53 AD3d793, 794 [2008]; People vBranch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]) nor hisfailure to preserve this issue through an objection at sentencing (see People v Snyder, 23 AD3d761, 763 [2005]) is fatal to the claim. Turning to the merits, as the record here provides noindication that defendant agreed to pay restitution as part of his plea bargain, County Courtshould not have imposed the enhanced sentence without first offering defendant the opportunityto withdraw his plea (see People vMcDowell, 56 AD3d 955, 956[*2][2008]; People vSnyder, 23 AD3d at 762-763; People v Toms, 293 AD2d 768, 769 [2002]).Therefore, defendant's sentence must be vacated and the matter remitted to County Court toimpose the agreed-upon sentence or to give defendant the option of withdrawing his plea beforeimposing the enhanced sentence (seePeople v McDermott, 68 AD3d 1453, 1454 [2009]; People v Pickens, 45 AD3d 1187, 1188 [2007], lv denied10 NY3d 769 [2008]).
Defendant's remaining contentions, to the extent that they are properly before us, have beenreviewed and are determined to be without merit.
Mercure, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofAlbany County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.