| People v Molinaro |
| 2015 NY Slip Op 01820 [126 AD3d 726] |
| March 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Heather Molinaro, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Felice B. Milani of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Iliou, J.), rendered July 23, 2013, convicting her of burglary in the second degree, uponher plea of guilty, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposedand the restitution judgment orders dated July 23, 2013; as so modified, the judgment isaffirmed, and the matter is remitted to the County Court, Suffolk County, for furtherproceedings in accordance herewith.
The defendant pleaded guilty in exchange for an unequivocal promise that she wouldbe sentenced to a specified determinate prison term and a specified period of postreleasesupervision. At sentencing, the County Court imposed the agreed-upon term ofimprisonment and period of postrelease supervision, but also signed 10 separaterestitution judgment orders.
Although a court is free to reserve the right to order restitution as part of a pleaagreement, the County Court did not do so here. Instead, at the very end of thesentencing proceeding, after imposing the agreed-upon terms, the court briefly turned toother matters prior to stating that it was also signing restitution judgment orders.
The defendant contends, among other things, that, before adding restitution to thesentence, the County Court should first have given her the option to withdraw her plea ofguilty or to accept a sentence including restitution. Preliminarily, we note that, in light ofthe fact that the court did not give the defendant a sufficient opportunity to withdraw herplea of guilty before imposing restitution, the defendant's claim is not subject to thepreservation requirement (seePeople v Turner, 24 NY3d 254 [2014]). Moreover, we agree with the defendantthat the County Court erred (seePeople v Pettress, 109 AD3d 555, 555-556 [2013]; People v Poznanski, 105 AD3d775, 776 [2013]). Accordingly, we vacate the sentence imposed and the restitutionjudgment orders, and remit the matter to the County Court. Upon remittal, the courtshould consider whether to impose the sentence called for in the plea agreement. If thecourt decides not to impose that sentence, then it must give the defendant an opportunityto withdraw her plea of guilty or to accept a sentence including restitution. [*2]In the event that the defendant chooses to accept a sentencewhich includes restitution, the court must first hold a hearing to determine a properamount of restitution (seePeople v Rhodes, 91 AD3d 1280, 1281 [2012]; People v Robinson, 21 AD3d1356, 1357 [2005]; Peoplev Cooke, 21 AD3d 1339, 1339 [2005]).
In light of our determination, the parties' remaining contentions are academic at thistime, and we do not address them. Skelos, J.P., Balkin, Sgroi and LaSalle, JJ.,concur.