| People v Lewis |
| 2012 NY Slip Op 06323 [98 AD3d 1186] |
| September 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael F.Lewis, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered January 19, 2010, convicting defendant upon his plea of guilty of thecrimes of attempted burglary in the second degree and vehicular manslaughter in the seconddegree.
In satisfaction of two superior court informations and other filed charges, defendant pleadedguilty to attempted burglary in the second degree and vehicular manslaughter in the seconddegree and waived his right to appeal. Although no particular sentence was promised, CountyCourt committed to run any sentences imposed concurrently to one another. Defendant wasreleased to probation supervision prior to sentencing, but was thereafter arrested for criminalcontempt. Based on the arrest, County Court stated at sentencing that it was no longer bound bythe plea agreement, and proceeded to sentence defendant to consecutive terms of imprisonment.Defendant appeals.
Defendant contends that County Court erred in imposing an enhanced sentence ofconsecutive prison terms without first affording him an opportunity to withdraw his plea.Although this issue is not precluded by a waiver of the right to appeal, defendant did not properlypreserve it by moving to withdraw his plea or vacate the judgment of conviction (see People v Donnelly, 80 AD3d797, 798 [2011]; People vArmstead, 52 AD3d 966, 967 [2008]). We, nevertheless, exercise our interest of justicejurisdiction under the circumstances and vacate the [*2]sentenceimposed.
"It is well settled that a sentencing court may not impose a sentence other than the one agreedto as part of the plea agreement unless it informs the defendant, at the time of the plea, of thepossibility of an enhanced sentence if he or she fails to meet specific conditions or the defendantis given an opportunity to withdraw his or her plea" (People v Lindsey, 80 AD3d 1005, 1006 [2011] [internal quotationmarks and citations omitted]; see Peoplev Fisher, 76 AD3d 1122, 1122 [2010]). Here, a review of the plea minutes establishesthat at no time did County Court give defendant a Parker/Outley warning that it wouldnot be bound by the agreed-upon sentence if defendant were arrested pending sentencing.Consequently, the court was required to offer defendant an opportunity to withdraw his plea priorto imposing the enhanced sentence (see People v Donnelly, 80 AD3d at 798; People v Gordon, 53 AD3d 793,794 [2008]). Notwithstanding the off-the-record bench conference which apparently resulted in amodification of the plea agreement at sentencing, there is no indication on the record thatdefendant was ever afforded an opportunity to withdraw his plea prior to the imposition of theenhanced sentence. That is, although defendant waived his request that County Court review thetranscript of the plea proceeding in exchange for immunity from prosecution on unchargedcrimes, there is nothing to demonstrate that defendant understood and knowingly waived theright to withdraw his plea in light of the Court's failure to administer Parker/Outleywarnings. Accordingly, we remit to County Court to either impose the agreed-upon sentence orpermit defendant an opportunity to withdraw his plea (see People v Lindsey, 80 AD3d at1006; People v McDermott, 68AD3d 1453, 1454 [2009]). In view of the foregoing, defendant's remaining challenge isacademic.
Rose, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgment is modified, as amatter of discretion in the interest of justice, by vacating the sentence imposed; matter remittedto the County Court of St. Lawrence County for further proceedings not inconsistent with thisCourt's decision; and, as so modified, affirmed.