| People v Gregory |
| 2016 NY Slip Op 04960 [140 AD3d 1088] |
| June 22, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert B. Gregory, Appellant. |
Robert C. Mitchell, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Rosalind C. Gray of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Braslow, J.), rendered February 19, 2015, convicting him of manslaughter in the firstdegree, upon his plea of guilty, and imposing sentence which included a fine in the sumof $5,000.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the provision of the sentence imposing a fine in the sum of $5,000; asso modified, the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligentlywaived his right to appeal (seePeople v Sanders, 25 NY3d 337 [2015]). The defendant's valid waiver of theright to appeal precludes appellate review of his contention that the sentence imposedwas excessive (see People vLopez, 6 NY3d 248, 255-256 [2006]; People v Magnotta, 137 AD3d 1303 [2016]).
The defendant's waiver of his right to appeal does not preclude appellate review ofhis contention that the County Court improperly imposed an enhanced sentence (see People v Muhammad, 47AD3d 951, 952 [2008]). Although the defendant's contention is unpreserved forappellate review (see People vCarrasquillo, 133 AD3d 774, 775 [2015]; People v Scoca, 38 AD3d 801 [2007]), we reach the issueas a matter of discretion in the interest of justice.
The County Court improperly enhanced the defendant's sentence by imposing a finethat was not part of the negotiated plea agreement (see People v Legette, 131 AD3d 546, 547 [2015]; People v Rossetti, 55 AD3d637, 637 [2008]). The relief the defendant requests in connection with this issue isvacatur of the provision of his sentence imposing the fine. Under the circumstances ofthis case, we deem it appropriate to vacate the provision of his sentence imposing a fine,so as to conform the sentence imposed to the promise made to the defendant in exchangefor his plea of guilty (see Peoplev Roberts, 139 AD3d 1092 [2016]; People v Sheats, 138 AD3d 894, 894-895 [2016]; People v Nilsen, 129 AD3d994, 995 [2015]). Leventhal, J.P., Miller, Duffy and Connolly, JJ., concur.