PEOPLE v. APPLEBERRY (2006)

Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15[4] ).   Contrary to the contention of defendant, County Court did not abuse its discretion in denying his motion seeking to withdraw his plea (see generally People v. Alexander, 97 N.Y.2d 482, 485, 743 N.Y.S.2d 45, 769 N.E.2d 802).   However, we agree with defendant that, “because restitution was not part of the plea agreement, the court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution” (People v. Therrien, 12 A.D.3d 1045, 1046, 784 N.Y.S.2d 771;  see People v. Cooke, 21 A.D.3d 1339, 804 N.Y.S.2d 516;  People v. Delair, 6 A.D.3d 1152, 775 N.Y.S.2d 664).   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.

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 Livingston County Court for further proceedings.

MEMORANDUM: