| People v Guadalupe |
| 2015 NY Slip Op 05206 [129 AD3d 989] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose A. Guadalupe, Appellant. |
Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Seth B. Altman andAndrew R. Kass of counsel), for respondent.
Appeal by the defendant from two judgments of the County Court, Orange County(De Rosa, J.), both rendered April 8, 2010, convicting him of manslaughter in the firstdegree under indictment No. 09-00513, and burglary in the second degree underindictment No. 09-00800, upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are modified, on the law, by vacating the sentencesimposed; as so modified, the judgments are affirmed, and the matters are remitted to theCounty Court, Orange County, for resentencing in accordance herewith.
The defendant's contention that the County Court failed to pronounce the amount ofrestitution at sentencing in violation of CPL 380.20 is not foreclosed by his waiver of theright to appeal or his failure to preserve the issue (see People v Nieves, 2 NY3d 310, 315 [2004]; People vSamms, 95 NY2d 52, 56 [2000]; People v Lawson, 124 AD3d 1249 [2015]; People v Volfson, 69 AD3d1123, 1125 [2010]; Peoplev Pump, 67 AD3d 1041, 1042 [2009]). Since the County Court failed topronounce the sentences of restitution in open court, the sentences must be vacated andthe matter remitted to the County Court, Orange County, for resentencing in accordancewith CPL 380.20 (see Penal Law § 60.27 [1]; People v Guerrero, 12 NY3d45, 47 [2009]; People v Fuller, 57 NY2d 152, 158-159 [1982]; People v Rose, 120 AD3d593, 594 [2014]; People vMcGhee, 96 AD3d 786 [2012]; People v Bauer, 229 AD2d 502,502-503 [1996]). Skelos, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.