| People v Thompson |
| 2013 NY Slip Op 02770 [105 AD3d 1067] |
| April 24, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v April Thompson, Also Known as April Sanders,Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Weber, J.), rendered August 1, 2011, convicting her of burglary in the second degree(four counts), upon her plea of guilty, and imposing sentence, including a direction thatthe defendant make restitution in a certain sum.
Ordered that judgment is modified, as a matter of discretion in the interest of justice,by vacating the provision of the sentence directing the defendant to make restitution in acertain sum; as so modified, the judgment is affirmed, and the matter is remitted to theCounty Court, Suffolk County, for further proceedings in accordance herewith.
The defendant's contention that the restitution component of her sentence should beeliminated because the County Court breached the plea agreement by directing her tomake restitution is unpreserved for appellate review (see CPL 470.05 [2]; People v Marinaro, 45 AD3d867, 868 [2007]; cf. Peoplev McAlpin, 17 NY3d 936 [2011]; People v Louree, 8 NY3d 541 [2007]). Nevertheless, wereach the issue, as a matter of discretion in the interest of justice.
The People correctly concede that the County Court erred in imposing restitutionsince there is no indication in the plea minutes that the defendant's plea of guilty wasnegotiated with terms that included restitution. The sole relief requested by the defendanton appeal is modification of her sentence to vacate the provision directing her to makerestitution, and the People consent to the sentence being so modified, although theyassert that a mandatory surcharge must then be imposed. Under the circumstances of thiscase, we deem it appropriate to vacate the provision of the defendant's sentence directingher to make restitution (seePeople v Esquivel, 100 AD3d 652, 652-653 [2012], lv denied 20 NY3d1011 [2013]), and remit the matter to the County Court, Suffolk County, for theimposition of the appropriate mandatory surcharge (see Penal Law §60.35). Skelos, J.P., Chambers, Sgroi and Hinds-Radix, JJ., concur.