| People v Legette |
| 2015 NY Slip Op 06519 [131 AD3d 546] |
| August 12, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joel Legette, Appellant. |
Judah Maltz, Kew Gardens, N.Y., for appellant.
Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley andPamela Kelly-Pincus of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Berkowitz, J.), rendered November 7, 2012, convicting him of driving while abilityimpaired by the combined influence of drugs or of alcohol and any drug or drugs inviolation of Vehicle and Traffic Law § 1192 (4-a), reckless endangermentin the second degree, endangering the welfare of a child, resisting arrest, and assault inthe third degree (three counts), upon his 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, Nassau County, for further proceedings consistent herewith.
The defendant contends that his plea of guilty was not knowingly, voluntarily, andintelligently entered based on the failure to inform him, at the plea proceeding, that hissentence would include restitution and a fine. Preliminarily, we note that thesecontentions survive the defendant's otherwise valid waiver of the right to appeal (seePeople v Seaberg, 74 NY2d 1, 10 [1989]; People v Niedwieski, 100 AD3d 1023 [2012]; People v Isaacs, 71 AD3d1161 [2010]), and are not subject to the preservation requirement since the SupremeCourt did not give the defendant a sufficient opportunity to withdraw his plea of guiltybefore imposing restitution and a fine (see People v Turner, 24 NY3d 254, 259 [2014]; People v Molinaro, 126 AD3d726 [2015]). In addition, the defendant specifically objected to the amount ofrestitution and the court refused to conduct a restitution hearing.
The Supreme Court erred in enhancing the defendant's sentence with restitution anda fine that were not part of his negotiated plea agreement (see People v Pettress, 109AD3d 555, 556 [2013]; People v Poznanski, 105 AD3d 775, 776 [2013]; People v Rossetti, 55 AD3d637 [2008]). Accordingly, we vacate the sentence imposed, and remit the matter tothe Supreme Court. Upon remittal, the court should consider whether to impose thesentence called for in the plea agreement (see People v Molinaro, 126 AD3d at727; People v Rossetti, 55AD3d 637 [2008]). If the court decides not to impose that sentence, then it must givethe defendant an opportunity either to withdraw his plea of guilty or to accept a sentenceincluding restitution and a fine (see People v Molinaro, 126 AD3d at 727; People v Patterson, 123 AD3d946 [2014]; People v Fulton, 238 AD2d 439, 440 [1997]). In the event thatthe defendant chooses to accept a sentence which includes restitution, the court must firsthold a hearing to [*2]determine the proper amount ofrestitution (see Penal Law § 60.27 [2]; People v Morrishill, 127 AD3d993 [2015]; People v Molinaro, 126 AD3d at 727; People v Ward, 103 AD3d925, 926 [2013]). Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.