PEOPLE v. ORTIZ (1997)

Defendant pleaded guilty to robbery in the third degree and was promised sentencing as a youthful offender to a term of shock probation.   He failed to appear on the scheduled sentencing date and was picked up on a bench warrant.   Based upon defendant's failure to appear for sentencing, County Court denied defendant youthful offender treatment and sentenced defendant to 11/313 to 4 years' imprisonment.

The court did not advise defendant that a harsher sentence than he bargained for could be imposed if defendant failed to appear at sentencing (see, People v. Moreno, 196 A.D.2d 850, 602 N.Y.S.2d 28;  People v. Michael, 190 A.D.2d 758, 593 N.Y.S.2d 292;  cf., People v. Howington, 216 A.D.2d 960, 628 N.Y.S.2d 921, lv. denied 86 N.Y.2d 781, 631 N.Y.S.2d 627, 655 N.E.2d 724).   Therefore, the court erred in imposing an enhanced sentence without affording defendant an opportunity to withdraw his guilty plea (see, People v. Hottois, 244 A.D.2d 971, 668 N.Y.S.2d 131 [decided herewith];  People v. McAllister, 216 A.D.2d 961, 962, 628 N.Y.S.2d 923;  People v. Williams, 195 A.D.2d 1040, 1041, 600 N.Y.S.2d 529).   Thus, we modify the judgment by vacating the sentence, and we remit the matter to Monroe County Court to impose the sentence promised or to afford defendant the opportunity to withdraw his plea.

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Monroe County Court for further proceedings.

MEMORANDUM: