| People v Sheats |
| 2016 NY Slip Op 02859 [138 AD3d 894] |
| April 13, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Sheats, Appellant. |
Robert C. Mitchell, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Michael J. Brennan of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County(Collins, J.), rendered February 17, 2015, convicting him of burglary in the third degree(two counts), upon his plea of guilty, imposing sentence, including a direction that thedefendant make restitution in the sum of $2,800, and issuing two restitution judgmentorders.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the provision of the sentence directing the defendant to makerestitution in the sum of $2,800, and by vacating the two restitution judgment orders; asso modified, the judgment is affirmed.
The defendant's waiver of the right to appeal, even if effective, does not foreclosereview of his contention that the Supreme Court violated the plea agreement by directinghim to pay restitution (seePeople v Johnson, 14 NY3d 483, 486-487 [2010]; People v Esquivel, 100 AD3d652 [2012]; People vDoris, 64 AD3d 813 [2009]; People v Delair, 6 AD3d 1152 [2004]). Although thedefendant's contention is unpreserved for appellate review (see People v Miller, 128 AD3d855 [2015]; People vWoods, 110 AD3d 748 [2013]; People v Jerome, 110 AD3d 739, 740 [2013]), we reach theissue as a matter of discretion in the interest of justice.
The People correctly concede that the Supreme Court erred in directing restitution, asthere is no indication in the plea minutes that the defendant's plea of guilty wasnegotiated with terms that included restitution. The sole relief requested by the defendantis modification of his sentence to vacate the provision directing restitution, and thePeople consent to the sentence being so modified. Under the circumstances of this case,we deem it appropriate to vacate the provision of the defendant's sentence directing himto make restitution and the two restitution judgment orders, so as to conform the sentenceimposed to the promise made to the defendant in exchange for his plea of guilty (see People v Nilsen, 129 AD3d994, 995 [2015]; People vThompson, 105 AD3d 1067 [2013]; People v Esquivel, 100 AD3d at652-653; People v Bruno,73 AD3d 941, 942 [2010]). Eng, P.J., Mastro, Leventhal and Miller, JJ., concur.