People v. Toms , 739 N.Y.S.2d 652 ( 2002 )

Crew III, J.

Appeal from a judgment of the County Court of Saratoga County (Scarano, Jr., J.), rendered October 26, 1998, convicting defendant upon his plea of guilty of the crimes of robbery in the first degree (four counts) and arson in the third degree.

Defendant pleaded guilty to four counts of robbery in the first degree and one count of arson in the third degree and was thereafter sentenced to four indeterminate prison terms of 121/2 to 25 years on the robbery counts and an indeterminate prison term of 5 to 15 years on the arson count. All sentences were to run concurrently with each other and with a sentence of imprisonment imposed upon defendant in Texas. At the time of sentencing, County Court also ordered defendant to pay restitution in the amount of $3,296.

Where, as here, a plea agreement does not include mention of restitution, a defendant must be given the opportunity to either withdraw his plea or accept the greater sentence of restitution (see, People v Cowan, 168 AD2d 509). The record makes plain that County Court did not advise defendant of his options in this regard, and this matter must therefore be remitted to County Court for that purpose (see, People v Nichols, 276 AD2d 832).

Mercure, J.P., Peters, Spain, Lahtinen, JJ., concur. Ordered that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Sara-toga County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.