People v Rhodes

2012 NY Slip Op 00550 [91 AD3d 1280]

Jnury 31, 2012

Appellate Division, Fourth Department

As corrected through Wednesday, February 29, 2012

The People of the State of New York,Respondent, v Brendan J. Rhodes, Appellant.

D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.Keith A. Slep, District Attorney, Belmont, for respondent. Appeal from a judgment of the Allegany County Court (Thomas P. Brown, J.), renderedJuly 19, 2010. The judgment convicted defendant, upon his plea of guilty, of robbery in the firstdegree. It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by vacating the sentence and asmodified the judgment is affirmed, and the matter is remitted to Allegany County Court forfurther proceedings in accordance with the following memorandum: Defendant appeals from ajudgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law 160.15 [4]). By failing to move to withdraw the plea or to vacate the judgment of conviction,defendant failed to preserve for our review his contention that his plea was not knowingly,voluntarily and intelligently entered (see People v Diaz, 62 AD3d 1252 [2009], lv denied 12NY3d 924 [2009]), as well as his challenge to the factual sufficiency of the plea allocution (seePeople v Lopez, 71 NY2d 662, 665 [1988]; People v Dowdell, 35 AD3d 1278, 1279 [2006], lvdenied 8 NY3d 921 [2007]). This case does not fall within the rare exception to the preservationrequirement inasmuch as the plea allocution does not "cast[ ] significant doubt upon thedefendant's guilt or otherwise call[ ] into question the voluntariness of the plea" (Lopez, 71NY2d at 666, see People v Neal, 56 AD3d 1211 [2008], lv denied 12 NY3d 761 [2009]). By failing to object to the imposition of restitution at sentencing, which was not a part ofthe plea agreement, defendant failed to preserve for our review his contention that County Courterred in enhancing the sentence by imposing restitution at sentencing without affording him theopportunity to withdraw the plea (see People v Delair, 6 AD3d 1152 [2004]). We neverthelessexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]), and we conclude that, because restitution was not part of the pleaagreement, the court should have afforded defendant the opportunity to withdraw his plea beforeordering him to pay restitution (see People v Therrien, 12 AD3d 1045, 1046 [2004]). In addition,defendant failed to preserve for our review his contention that the record is insufficient to supportthe amount of restitution ordered (see generally People v Cooke, 21 AD3d 1339 [2005]). Wefurther exercise our power to review that contention as a matter of discretion in the interest ofjustice, however, and we conclude that the court erred in failing to conduct a hearing todetermine the amount of restitution (see id.). 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. Present Scudder, P.J., Smith, Centra, Lindley andGorski, JJ.