PEOPLE v. GILMORE (2004)

 On appeal from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the fourth degree (Penal Law § 220.34[1] ), defendant contends that the indictment must be dismissed because he was required to appear before the grand jury in shackles and manacles despite the absence of a reasonable basis set forth in the record for that requirement (see People v. Rouse, 79 N.Y.2d 934, 935, 582 N.Y.S.2d 986, 591 N.E.2d 1172;  People v. Pennick, 2 A.D.3d 1427, 768 N.Y.S.2d 886, lv. denied 1 N.Y.3d 632, 777 N.Y.S.2d 30, 808 N.E.2d 1289).   We note at the outset that, contrary to the People's contention, defendant's challenge is to the integrity of the grand jury proceeding (see e.g. Pennick, 2 A.D.3d at 1427-1428, 768 N.Y.S.2d 886, lv. denied 1 N.Y.3d 632, 777 N.Y.S.2d 30, 808 N.E.2d 1289), and such a challenge survives defendant's guilty plea (see generally People v. Hansen, 95 N.Y.2d 227, 230-231, 715 N.Y.S.2d 369, 738 N.E.2d 773;  People v. Pelchat, 62 N.Y.2d 97, 108, 476 N.Y.S.2d 79, 464 N.E.2d 447).   On the merits, however, although we agree with defendant that the requisite reasonable basis for the restraint was not set forth in the record, we nevertheless conclude that the prosecutor's cautionary instructions to the grand jury dispelled any possible prejudice to defendant (see Pennick, 2 A.D.3d at 1427-1428, 768 N.Y.S.2d 886;  People v. Neubauer, 296 A.D.2d 557, 745 N.Y.S.2d 699, lv. denied 98 N.Y.2d 731, 749 N.Y.S.2d 481, 779 N.E.2d 192;  People v. Felder [Appeal No. 2], 201 A.D.2d 884, 885, 607 N.Y.S.2d 793, lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301).

 We further agree with defendant that County Court erred in imposing restitution where, as here, restitution was not included in the terms of the plea agreement.   Contrary to the People's contention, defendant preserved his contention for our review by objecting at the time of sentencing when the court ordered him to pay restitution (see generally People v. Lovett, 8 A.D.3d 1007, 778 N.Y.S.2d 243;  People v. Holmes, 306 A.D.2d 889, 760 N.Y.S.2d 920, lv. denied 100 N.Y.2d 621, 767 N.Y.S.2d 404, 799 N.E.2d 627), and he was not in addition required to request a restitution hearing to determine the proper amount of restitution.   Because restitution was not included in the terms of the plea agreement, the court erred in ordering him to pay restitution without first affording him the opportunity to withdraw his guilty plea (see People v. Delair, 6 A.D.3d 1152, 775 N.Y.S.2d 664;  People v. Hendrix, 2 A.D.3d 1479, 770 N.Y.S.2d 519;  People v. Austin, 275 A.D.2d 913, 715 N.Y.S.2d 173).   We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court to impose the sentence promised or to afford defendant the opportunity to withdraw his plea.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Jefferson County Court for further proceedings.

MEMORANDUM: