PEOPLE v. KEGEL (2008)

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jaeger, J.), rendered June 14, 2007, convicting him of robbery in the third degree (four counts), upon his plea of guilty, and imposing consecutive terms of imprisonment of one to three years and restitution.

ORDERED that the judgment is reversed, on the law, the sentence is vacated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

Although a court is free to reserve the right to order restitution as part of a plea bargain, the plea minutes in this case do not indicate that the plea of guilty was negotiated with terms that included restitution (see People v. Henderson, 44 A.D.3d 873, 873-874, 843 N.Y.S.2d 678).   Accordingly, at sentencing, the defendant should have been given an opportunity either to withdraw his plea or to accept the enhanced sentence of restitution and a prison sentence (see People v. Toms, 293 A.D.2d 768, 769, 739 N.Y.S.2d 652;  People v. Watson, 287 A.D.2d 889, 890, 731 N.Y.S.2d 548;  People v. Cisco, 208 A.D.2d 643, 618 N.Y.S.2d 239;  People v. Cowan, 168 A.D.2d 509, 562 N.Y.S.2d 749).   Since the defendant was not afforded this opportunity, we remit the matter for that purpose, or for the imposition of the agreed-upon sentence.