PEOPLE v. PICKETT (2011)

On a prior appeal, we affirmed the judgment convicting defendant upon his plea of guilty of manslaughter in the second degree under Penal Law § 125.15(1) (People v. Pickett, 49 A.D.3d 1207, 853 N.Y.S.2d 777, lv. denied 10 N.Y.3d 963, 863 N.Y.S.2d 147, 893 N.E.2d 453).   We subsequently granted defendant's motion for a writ of error coram nobis on the ground that appellate counsel had failed to raise an issue on appeal that may have merit, i.e., that County Court erred in ordering restitution inasmuch as it was not part of the plea bargain (People v. Pickett, 67 A.D.3d 1458, 887 N.Y.S.2d 922), and we vacated our prior order.   We now consider the appeal de novo.

 We agree with defendant that the court erred in enhancing the sentence by imposing restitution inasmuch as restitution was not included in the plea bargain (see People v. Pett, 74 A.D.3d 1891, 903 N.Y.S.2d 639;  People v. Hunter, 72 A.D.3d 1536, 898 N.Y.S.2d 905;  People v. Cooke, 21 A.D.3d 1339, 804 N.Y.S.2d 516).   Although defendant failed to preserve his contention for our review (see Hunter, 72 A.D.3d 1536, 898 N.Y.S.2d 905;  Cooke, 21 A.D.3d 1339, 804 N.Y.S.2d 516), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   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 Pett, 74 A.D.3d 1891, 903 N.Y.S.2d 639;  Hunter, 72 A.D.3d 1536, 898 N.Y.S.2d 905).   In view of our determination, we need not address defendant's remaining contention.

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 Jefferson County Court for further proceedings.

MEMORANDUM: