| People v Gabbidon |
| 2012 NY Slip Op 05033 [96 AD3d 1235] |
| June 21, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v NathanielGabbidon, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered September 21, 2010, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the second degree.
In satisfaction of a five-count indictment, defendant pleaded guilty to the reduced charge ofattempted robbery in the second degree in connection with his involvement in the beating androbbery of a man in the City of Albany. By the terms of the plea agreement, defendant wasoffered a sentence of 4½ years in prison and the minimum period of postreleasesupervision. The plea agreement generally referenced defendant's "cooperation," but did notspecify what was required in that regard. At sentencing, the People informed County Court thatdefendant had violated the plea agreement by failing to testify against his codefendant. The court,finding that defendant had also lied to the Probation Department, imposed an enhanced sentenceof 6½ years in prison and three years of postrelease supervision. Defendant appeals,arguing, among other things, that the court improperly enhanced his sentence without giving himthe opportunity to withdraw his plea.
We agree that County Court erred. Nowhere in this record did the court inform [*2]defendant that it could impose a greater sentence if defendant didnot testify against his codefendant or if he lied to the Probation Department. Under thesecircumstances, the court could not impose an enhanced sentence without first giving defendantthe opportunity to withdraw his plea, which the court failed to do (see People v Becker, 80 AD3d795, 796-797 [2011]; People vDunton, 10 AD3d 808, 808-809 [2004], lv denied 4 NY3d 830 [2005]).Although the record before us indicates that defendant failed to preserve this issue by moving towithdraw his plea or vacate the judgment of conviction, we exercise our interest of justicejurisdiction, modify the judgment by vacating the sentence and remit the matter for County Courtto either impose the agreed-upon sentence or allow defendant to withdraw his plea (see People v Armstead, 52 AD3d966, 967 [2008]; People vHastings, 24 AD3d 954, 955 [2005]). In view of this disposition, defendant's remainingargument is academic.
Mercure, J.P., Rose, Kavanagh and Egan Jr., 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 Albany County for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.