| People v Poznanski |
| 2013 NY Slip Op 02272 [105 AD3d 775] |
| April 3, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jan Poznanski, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Barbara Kornblau and TammyJ. Smiley of counsel; Matthew C. Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County(Robbins, J.), rendered July 16, 2007, convicting him of burglary in the first degree (twocounts), upon his plea of guilty, and imposing sentence, including a direction that thedefendant pay restitution in the sum of $570.50.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed;as so modified, the judgment is affirmed, and the matter is remitted to the County Court,Nassau County, for further proceedings in accordance herewith.
The defendant challenges the factual sufficiency of his plea allocution. Contrary tothe People's contention, the defendant's waiver of his right to appeal was not valid (see People v Bradshaw, 18NY3d 257, 264 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]) and, therefore,the purported waiver does not bar review of the defendant's claim. Nevertheless, thedefendant's challenge to the factual sufficiency of his plea allocution is unpreserved forappellate review (see People v Toxey, 86 NY2d 725, 726 [1995]; People v Jones, 73 AD3d1386, 1387 [2010]; Peoplev Williams, 70 AD3d 1059, 1060 [2010]; People v Kelly, 50 AD3d 921 [2008]). Moreover, contraryto the defendant's contention, the narrow "rare case" exception to the preservation ruledoes not apply herein (see People v Lopez, 71 NY2d 662, 666 [1988]; People v Morgan, 84 AD3d1594 [2011]).
However, the County Court improperly directed the defendant to pay restitution inthe sum of $570.50. Although a court is free to reserve the right to order restitution aspart of a plea agreement, the plea minutes do not indicate that a plea of guilty wasnegotiated with terms that included restitution. Accordingly, at sentencing, the defendantshould have been "given an opportunity either to withdraw his plea or to accept theenhanced sentence that included both restitution and a prison sentence" (People v Ortega, 61 AD3d705, 706 [2009]; seePeople v Suarez, 103 AD3d 673 [2013]; People v Esquivel, 100 AD3d 652 [2012], lvdenied 20 NY3d 1011 [2013]; People v Gibson, 88 AD3d 1012 [2011]; People v Kegel, 55 AD3d625 [2008]; People vHenderson, 44 AD3d 873, 874 [2007]) or for the court to impose theagreed-upon sentence.[*2]
Accordingly, we vacate the sentence imposed,and remit the matter to the County Court, Nassau County, to allow the County Court to(1) impose the sentence promised to the defendant at the plea proceeding, (2) afford thedefendant the opportunity to accept the previously imposed sentence, including thedirection that he pay restitution in the sum of $570.50, or (3), in the absence of either ofthose results, permit the defendant to withdraw his plea of guilty (see People v Sosa-Rodriguez,63 AD3d 861, 863 [2009]).
In light of our determination, we need not address the defendant's remainingcontention, raised in his pro se supplemental brief. Mastro, J.P., Rivera, Chambers andMiller, JJ., concur.