| People v Harden |
| 2012 NY Slip Op 07152 [99 AD3d 1108] |
| October 25, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Darnile R.Harden, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered August 3, 2010, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to one count of criminalsale of a controlled substance in the third degree and was sentenced, as a second felony offender,to four years in prison followed by two years of postrelease supervision and ordered to makerestitution of $100. On this appeal from the judgment of conviction, defendant first argues thatCounty Court did not advise him at the time of his plea that he would be sentenced as a secondfelony offender. However, the record before us fails to indicate that defendant preserved thisclaim by moving to either withdraw the plea or vacate the judgment of conviction (see Peoplev Mayers, 74 NY2d 931, 932 [1989]; People v Campbell, 66 AD3d 1059, 1059-1060 [2009]). Nor did hepreserve by timely objection his further contention that the court failed to comply with therequirements of CPL 400.21 (see Peoplev Washington, 89 AD3d 1140, 1142 [2011], lv denied 18 NY3d 963 [2012]; People v Califano, 84 AD3d 1504,1506-1507 [2011], lv denied 17 NY3d 805 [2011]). However, the People concede thatrestitution was not a part of the plea agreement. Accordingly, the sentence must be vacated andthe matter remitted to County Court to either impose the agreed-upon sentence or give defendantthe opportunity to withdraw [*2]his plea before imposing theenhanced sentence (see People vGalietta, 75 AD3d 753, 754-755 [2010]; People v Gantt, 63 AD3d 1379, 1379-1380 [2009]).
Lahtinen, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofUlster County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.