| People v Patterson |
| 2014 NY Slip Op 08862 [123 AD3d 946] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Erica Patterson, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County(Efman, J.), rendered September 23, 2013, convicting her of criminal mischief in thethird degree, upon her plea of guilty, and imposing sentence.
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 SupremeCourt, Suffolk County, for further proceedings consistent herewith.
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 plea of guilty wasnegotiated with terms that included restitution (see People v Kegel, 55 AD3d 625, 625 [2008]).Accordingly, at sentencing, the defendant should have been given an opportunity eitherto withdraw her plea or to accept the enhanced sentence (see id.). Since thedefendant was not afforded this opportunity, we vacate the sentence imposed, and remitthe matter to the Supreme Court, Suffolk County, to allow the Supreme Court to (1)impose the sentence promised to the defendant at the plea proceedings, (2) afford thedefendant the opportunity to accept the previously imposed sentence, including thedirection that she pay restitution in the specified sums, or (3) in the absence of either ofthese results, permit the defendant to withdraw her plea of guilty (see People v Pettress, 109AD3d 555, 556 [2013]). Rivera, J.P., Hall, Austin, Miller and Maltese, JJ.,concur.