| People v Wilson |
| 2015 NY Slip Op 01011 [125 AD3d 1303] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vPierre C. Wilson, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered November 3, 2010. The judgment convicted defendant, upon his plea of guilty,of robbery in the first degree (six counts) and robbery in the second degree (23counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by vacating the sentence andas modified the judgment is affirmed, and the matter is remitted to Monroe County Courtfor further proceedings in accordance with the following memorandum: Defendantappeals from a judgment convicting him upon his plea of guilty of six counts of robberyin the first degree (Penal Law § 160.15 [3]) and 23 counts of robbery in thesecond degree (§ 160.10 [1]; [2] [a], [b]). We reject defendant's contentionthat his sentence is unduly harsh and severe. We agree with defendant, however, that,because restitution was not part of the plea agreement, County Court should haveafforded him the opportunity to withdraw his plea before ordering him to pay restitution(see People v Ponder, 42AD3d 880, 882 [2007], lv denied 9 NY3d 925 [2007]; People v Robinson, 21 AD3d1356, 1357 [2005]). Although defendant failed to preserve his contention for ourreview, we exercise our power to review it as a matter of discretion in the interest ofjustice (see Ponder, 42 AD3d at 882). We therefore modify the judgment byvacating the sentence, and we remit the matter to County Court to impose the promisedsentence or to afford defendant the opportunity to withdraw his plea.Present—Scudder, P.J., Fahey, Peradotto, Carni and Whalen, JJ.