SPENCER, IV, HENRY S., PEOPLE v , 21 N.Y.S.3d 912 ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1371
    KA 14-00380
    PRESENT: SCUDDER, P.J., CENTRA, CARNI, VALENTINO, AND DEJOSEPH, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    HENRY S. SPENCER, IV, DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (AMBER L. KERLING
    OF COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Cattaraugus County Court (Ronald D.
    Ploetz, J.), rendered January 13, 2014. The judgment convicted
    defendant, upon his plea of guilty, of burglary in the third degree
    (two counts).
    It is hereby ORDERED that the judgment so appealed from is
    unanimously modified as a matter of discretion in the interest of
    justice and on the law by vacating the sentence and as modified the
    judgment is affirmed, and the matter is remitted to Cattaraugus County
    Court for further proceedings in accordance with the following
    memorandum: On appeal from a judgment of conviction convicting him
    upon his plea of guilty of two counts of burglary in the third degree
    (Penal Law § 140.20), defendant contends that his waiver of the right
    to appeal is not valid, and he challenges the severity of his
    sentence. We agree with defendant that his waiver of the right to
    appeal is invalid “inasmuch as the minimal perfunctory inquiry made by
    County Court was insufficient to ‘establish that [he] understood that
    the right to appeal is separate and distinct from those rights
    automatically forfeited upon a plea of guilty’ ” (People v Finch, 120
    AD3d 1524, 1525, quoting People v Lopez, 6 NY3d 248, 256; see People v
    Hunt, 125 AD3d 1275, 1276). We nevertheless conclude that the
    sentence is not unduly harsh or severe.
    We agree with defendant, however, that the court erred in
    enhancing his sentence by imposing restitution without affording him
    the opportunity to withdraw his plea, inasmuch as restitution was not
    a part of the plea agreement (see People v Pickett, 90 AD3d 1526,
    1527). Even assuming, arguendo, that defendant executed a valid
    waiver of the right to appeal, defendant’s challenge to the imposition
    of restitution would not be encompassed by the waiver inasmuch as
    restitution was not included in the terms of the plea agreement (see
    People v Tessitore, 101 AD3d 1621, 1622, lv denied 20 NY3d 1104).
    -2-                         1371
    KA 14-00380
    Although defendant did not object to the imposition of restitution at
    sentencing and thus failed to preserve that contention for our review
    (see Pickett, 90 AD3d at 1527), we nevertheless exercise our power to
    review it as a matter of discretion in the interest of justice (see
    CPL 460.15 [3] [c]). We therefore modify the judgment by vacating the
    sentence, and we remit the matter to County Court to impose the
    promised sentence or to afford defendant the opportunity to withdraw
    his plea (see People v Wilson, 125 AD3d 1303, 1303-1304; Pickett, 90
    AD3d at 1527).
    Entered:   December 31, 2015                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 14-00380

Citation Numbers: 134 A.D.3d 1553, 21 N.Y.S.3d 912

Filed Date: 12/31/2015

Precedential Status: Precedential

Modified Date: 1/12/2023