| People v Esquivel |
| 2012 NY Slip Op 07313 [100 AD3d 652] |
| November 7, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PersiEsquivel, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Judith R.Sternberg of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (McCormack,J.), rendered October 29, 2009, convicting him of aggravated vehicular homicide, aggravatedvehicular assault, assault in the third degree (two counts), aggravated unlicensed operation of amotor vehicle in the first degree, aggravated operating a motor vehicle while under the influenceof alcohol as a felony, and operating a motor vehicle without an ignition interlock device, uponhis plea of guilty, and imposing sentence, including a direction that the defendant makerestitution in the sum of $17,724.67.
Ordered that the judgment is modified, on the law, by vacating the provision of the sentencedirecting the defendant to make restitution in the sum of $17,724.67; as so modified, thejudgment is affirmed.
Contrary to the defendant's contention, the record demonstrates that he knowingly,voluntarily, and intelligently waived his right to appeal (see People v Lopez, 6 NY3d 248 [2006]; People vCallahan, 80 NY2d 273 [1992]; People v Seaberg, 74 NY2d 1 [1989]). Thedefendant's valid waiver precludes review of his claim that the County Court improperly based itssentence upon an unsubstantiated fact in violation of the principles set forth in Apprendi vNew Jersey (530 US 466 [2000]; see People v Rodriguez, 82 AD3d 794, 795 [2011]; People v Haynes, 70 AD3d 718,719 [2010]; People v Andre L., 18AD3d 575, 576 [2005]).
The defendant's waiver of the right to appeal does not encompass his contention that theCounty Court breached the plea agreement by directing him to pay restitution (see People v Johnson, 14 NY3d483, 486-487 [2010]; People vDoris, 64 AD3d 813 [2009]; People v Delair, 6 AD3d 1152 [2004]). Although a court is free toreserve the right to order restitution as part of a plea agreement (see People v Ortega, 61 AD3d705, 706 [2009]; People vKegel, 55 AD3d 625 [2008]; People v Henderson, 44 AD3d 873 [2007]), there is no indicationin the plea minutes that the defendant's plea of guilty was negotiated with terms that includedrestitution, and the People concede that restitution was not part of the plea agreement.Accordingly, at sentencing, the defendant should have been given an opportunity either towithdraw his plea or to accept the addition of restitution to his negotiated sentence (seePeople v Ortega, 61 AD3d at 706; People v Kegel, 55 AD3d at 625; People vHenderson, 44 AD3d at 874). [*2]The sole relief requested bythe defendant on appeal is modification of his sentence to vacate the provision directingrestitution, and the People consent to the sentence being so modified. Under these circumstances,in lieu of vacating the sentence in its entirety and remitting the matter to afford the defendant theopportunity to withdraw his plea, we deem it appropriate to vacate the provision of thedefendant's sentence directing restitution, so as to conform the sentence imposed to the promisemade to him in exchange for his plea of guilty (see People v McKenzie, 98 AD3d 749 [2012]; People v Bruno, 73 AD3d 941,942 [2010]; People v Brown, 70AD3d 1047, 1048 [2010], cert denied 562 US —, 131 S Ct 420 [2010];People v Ortega, 61 AD3d at 706). Eng, P.J., Rivera, Balkin and Austin, JJ., concur.