| People v Gantt |
| 2010 NY Slip Op 07084 [77 AD3d 988] |
| October 7, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Mark W.Gantt, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Clinton County (Ryan, J.),rendered July 1, 2009, which resentenced defendant following his conviction of the crime ofburglary in the second degree (two counts).
In satisfaction of a 21-count indictment and pursuant to a negotiated agreement, defendantpleaded guilty to two counts of burglary in the second degree, waived his right to appeal, and wassentenced as a second violent felony offender to concurrent prison terms of 12 years followed byfive years of postrelease supervision. Although the plea agreement made no mention ofrestitution, County Court ordered defendant to pay restitution in the amount of $500.Consequently, when this case was previously before us, we vacated defendant's sentence on theground that the imposition of restitution was improper because that issue had not been set forthin the plea agreement (People vGantt, 63 AD3d 1379 [2009]).
In remitting the matter to County Court, we directed that defendant be afforded theopportunity to either withdraw his plea or accept the enhanced sentence of restitution (id.at 1380). We also indicated that County Court, alternatively, could impose the sentence that waspromised in the plea agreement (id.). At resentencing, County Court elected the latteroption, imposing the agreed-upon sentence without restitution. Defendant now appeals, and weaffirm.[*2]
County Court's adherence to the original plea agreementis not inconsistent with our prior decision and, contrary to defendant's claim, it was not requiredto afford defendant the opportunity to withdraw his plea (see People v Schwickrath, 40 AD3d 1218, 1219 [2007]; People v Toms, 2 AD3d 897, 898[2003]). Defendant's remaining arguments should have been raised on the appeal from theoriginal judgment of conviction and may not be raised on an appeal from resentencing (seegenerally People v Ryder, 239 AD2d 364, 365 [1997], lv denied 90 NY2d 910[1997]; People v Cahill, 190 AD2d 744, 744-745 [1993], lv denied 81 NY2d 883[1993]; People v Foster, 42 AD2d 801, 801 [1973]).
Rose, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.