| People v Stanley |
| 2012 NY Slip Op 07719 [100 AD3d 1152] |
| November 15, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v EdwardStanley, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Lamont, J.), rendered June 10, 2011 inAlbany County, convicting defendant upon his plea of guilty of the crime of burglary in the thirddegree.
In satisfaction of a three-count indictment, defendant pleaded guilty to burglary in the thirddegree and waived his right to appeal. Under the terms of the plea agreement, he was to besentenced as a second felony offender to 2½ to 5 years in prison. In addition, defendant wasgiven a Parker admonishment advising him that if he committed a crime prior tosentencing, the court was not bound by the sentencing commitment and could sentence him to upto 3½ to 7 years in prison. Between the date of the plea agreement and sentencing,defendant missed an appointment at the Probation Department causing a delay in the preparationof the presentence investigation report. As a result, he was given an enhanced sentence of 3 to 6years in prison. Defendant appeals.
Defendant asserts that Supreme Court erroneously enhanced his sentence because he missedan appointment at the Probation Department during which he was to provide information to beincluded in his presentence investigation report. Defendant's waiver of his right to appeal doesnot preclude him from raising this claim (see People v Armstead, 52 AD3d 966, 967 [2008]; People v Terrell, 41 AD3d 1044,1045 [2007]). He has, however, failed to preserve it given that he did not object to theimpropriety of the enhanced sentence and the record does not indicate that he moved to withdrawhis guilty plea or vacate the judgment of conviction (see [*2]People v Smalls, 85 AD3d1450, 1450 [2011]; People v Armstead, 52 AD3d at 967). Nevertheless, inasmuch asthe record discloses that defendant's contention has merit, we shall exercise our interest of justicejurisdiction and modify the judgment accordingly (see CPL 470.15 [6]; People v Gabbidon, 96 AD3d1235, 1236 [2012]; People v Armstead, 52 AD3d at 967).
The minutes of the plea proceedings do not reveal that defendant's cooperation with theProbation Department was an express condition of the plea agreement, the breach of whichwould result in the imposition of an enhanced sentence. The oral Parker admonishmentalso did not make such a reference. Given that defendant did not violate an express condition ofthe plea agreement, an enhanced sentence should not have been imposed without first affordinghim an opportunity to withdraw his plea. Consequently, the matter must be remitted to SupremeCourt to either impose the agreed-upon sentence or allow defendant to withdraw his plea (seePeople v Gabbidon, 96 AD3d at 1236; People v Armstead, 52 AD3d at 968).
Peters, P.J., Mercure, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgmentis modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed;matter remitted to the Supreme Court for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.