| People v Pettress |
| 2013 NY Slip Op 05645 [109 AD3d 555] |
| August 14, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andrew Pettress, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeals by the defendant from three judgments of the County Court, Suffolk County(Condon, J.), all rendered April 11, 2011, convicting him of (1) attempted grand larcenyin the third degree under indictment No. 94-10, (2) conspiracy in the fifth degree,criminal possession of a forged instrument in the second degree (three counts), identitytheft in the first degree (two counts), and grand larceny in the third degree (two counts)under indictment No. 1171-10, and (3) conspiracy in the fifth degree, attempted identitytheft in the first degree, and attempted grand larceny in the third degree under superiorcourt information No. 1891-10, upon his pleas of guilty, and imposing sentences,including directions that the defendant pay restitution in certain specified sums.
Ordered that the judgments are modified, on the law, by vacating the sentencesimposed; as so modified, the judgments are affirmed, and the matter is remitted to theCounty Court, Suffolk County, for further proceedings in accordance herewith.
The defendant contends that his pleas and sentences should be vacated because theCounty Court failed to advise him at the time he entered his pleas of guilty that hissentences would include restitution. At the sentencing proceeding, the defendant did nothave a sufficient opportunity to object to the imposition of restitution. The court made abrief reference to "RJOs," apparently referring to restitution judgment orders. Afterpronouncing the sentence, the court stated: "With respect to any and all surcharges, giventhe fact there's significant restitution judgment order obligations here, I'm going to waivethe surcharges." Under these circumstances, the defendant's contention will be addressedon the merits (see People vMcAlpin, 17 NY3d 936, 938 [2011]; cf. People v Murray, 15 NY3d 725, 726-727 [2010]).
Although a court is free to reserve the right to order restitution as part of a pleabargain, the plea minutes in this case do not indicate that the pleas of guilty werenegotiated with terms that included restitution (see People v Poznanski, 105 AD3d 775, 776 [2013], lvdenied 21 NY3d 1008 [2013]; People v Suarez, 103 AD3d 673 [2013]; People v Ortega, 61 AD3d705, 706 [2009]; People vKegel, 55 AD3d 625 [2008]; People v Henderson, 44 AD3d 873, 873-874 [2007]). Atsentencing, the defendant [*2]should have been "given anopportunity either to withdraw his plea[s] or to accept the enhanced sentence[s] thatincluded both restitution and a prison sentence" (People v Ortega, 61 AD3d at706; see People v Poznanski, 105 AD3d at 776; People v Suarez, 103AD3d at 673; People vEsquivel, 100 AD3d 652 [2012]; People v Gibson, 88 AD3d 1012 [2011]), or for the courtto impose the sentences agreed upon at the plea proceedings.
Accordingly, we vacate the sentences imposed, and remit the matter to the CountyCourt, Suffolk County, to allow the County Court to (1) impose the sentences promisedto the defendant at the plea proceedings, (2) afford the defendant the opportunity toaccept the previously imposed sentences, including the directions that he pay restitutionin the specified sums, or (3), in the absence of either of those results, permit thedefendant to withdraw his pleas of guilty (see People v Poznanski, 105 AD3d at776). Rivera, J.P., Dickerson, Leventhal and Lott, JJ., concur.