| People v Lewis |
| 2011 NY Slip Op 08067 [89 AD3d 1485] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Joel A. Lewis,Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), rendered May22, 2009. The judgment convicted defendant, upon his plea of guilty, of burglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matter ofdiscretion in the interest of justice and on the law by vacating the sentence and as modified the judgmentis affirmed, and the matter is remitted to Oswego County Court for further proceedings in accordancewith the following memorandum: On appeal from a judgment convicting him, following his plea of guilty,of burglary in the second degree (Penal Law § 140.25 [2]), defendant contends that CountyCourt erred in refusing to suppress physical evidence taken from him by the police as well as statementsthat he made to the police. We reject that contention. The evidence adduced at the suppression hearingestablished that the police had the authority to arrest defendant for operating a motor vehicle while hisregistration was suspended or revoked, a misdemeanor (Vehicle and Traffic Law § 512; seePeople v Brown, 306 AD2d 291 [2003], lv denied 100 NY2d 618 [2003]). Thus, thepolice had the authority to conduct a search incident to his arrest (see People v Troiano, 35NY2d 476, 478 [1974]). We further note that any statements made by defendant before he wasadvised of his Miranda rights were spontaneous and were not the result of questioning orconduct reasonably likely to elicit any statements (see People v Huffman, 61 NY2d 795, 797[1984]). With respect to the statements following the administration of Miranda rights, wedefer to the court's credibility determination that defendant understood his Miranda rights andknowingly, intelligently and voluntarily waived them before agreeing to speak to the police and toprovide a written statement (see People vTwillie, 28 AD3d 1236, 1237 [2006], lv denied 7 NY3d 795 [2006]).
Defendant failed to object to the imposition of restitution at sentencing and failed to request arestitution hearing and thus has failed to preserve for our review his contention that the court erred inordering him to pay restitution (see People vLovett, 8 AD3d 1007 [2004], lv denied 3 NY3d 677 [2004]). Nevertheless, weexercise our power to review his contention as a matter of discretion in the interest of justice,particularly because the court stated at the plea hearing that restitution was not being sought (cf. People v Sweeney, 79 AD3d 1789[2010], lv denied 16 NY3d 900 [2011]), and the record is devoid of any evidence supportingthe amount of restitution that defendant was required to pay. We therefore modify the judgment byvacating the sentence, and we remit the [*2]matter to County Court toimpose the sentence promised or to afford defendant the opportunity to move to withdraw his plea (see People v Kistner, 34 AD3d 1316[2006]; People v Delair, 6 AD3d1152 [2004]). Present—Centra, J.P., Fahey, Peradotto, Lindley and Martoche, JJ.