| People v Fisher |
| 2010 NY Slip Op 06667 [76 AD3d 1122] |
| September 23, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gerald F.Fisher, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Appeal from a judgment of the County Court of Franklin County (Clute, J.), renderedNovember 19, 2009, convicting defendant upon his plea of guilty of the crime of criminalmischief in the third degree.
Defendant pleaded guilty to criminal mischief in the third degree in exchange for arecommended sentence of five years of probation or one year in county jail. At sentencing,County Court, upon discovering that defendant had been arrested for assault in the second degreewhile in jail, sentenced defendant to a prison term of 1
We agree with defendant that County Court erred in enhancing his sentence. Although thisissue is unpreserved by defendant's failure to move to withdraw his plea or vacate the judgmentof conviction, given the circumstances, we will exercise our interest of justice jurisdiction(see CPL 470.15 [6]; People vArmstead, 52 AD3d 966, 967-968 [2008]). The sentencing court may not impose asentence other than the one established during the plea agreement unless it informs the defendant,at the time of the plea, of the possibility of an enhanced sentence if he or she fails to meetspecific conditions or the defendant is given an opportunity to withdraw his or her plea (see People v McDermott, 68 AD3d1453, 1453 [2009]; People v Armstead, 52 AD3d at 967-968). Here, at the time ofthe plea, County Court simply indicated to defendant that in exchange for his guilty plea, thecourt would decide "whether it's five years probation or one year jail." At sentencing, the courtissued the longer sentence in prison without giving defendant the opportunity to withdraw hisplea. Under the circumstances, [*2]we vacate defendant'ssentence and remit the matter to County Court to impose the agreed-upon sentence or, in thealternative, give defendant the option to withdraw his plea before imposing the enhancedsentence (see People v Galietta, 75AD3d 753, 754 [2010]; People v McDermott, 68 AD3d at 1454).
Cardona, P.J., Spain, Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by vacating the sentence imposed;matter remitted to the County Court of Franklin County for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.