PEOPLE v. SCHWICKRATH (2007)

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered November 10, 2005, which resentenced defendant following his conviction of the crimes of burglary in the second degree, grand larceny in the fourth degree, burglary in the third degree, petit larceny and endangering the welfare of a child.

When this case was previously before us, we vacated defendant's sentence on the basis that the imposition of restitution was improper because that issue had not been set forth in the plea agreement (23 A.D.3d 707, 803 N.Y.S.2d 307 [2005] ).   In remitting the matter to County Court, we directed that defendant be afforded the opportunity to either withdraw his plea or accept the sentence with the inclusion of restitution (id. at 708, 803 N.Y.S.2d 307).   Alternatively, we held that County Court could resentence defendant in accordance with the negotiated plea agreement, that is, sans the restitution (id. at 708-709, 803 N.Y.S.2d 307).   Defendant now appeals, arguing that he was improperly denied the opportunity to address County Court prior to being resentenced.   The People agree with defendant's argument and his request that this matter, once again, be remitted for resentencing.

 CPL 380.50 requires the trial court to allow the prosecutor, defense counsel and defendant an opportunity to speak at sentencing or resentencing, but literal compliance with the statute is not required (see People v. Green, 54 N.Y.2d 878, 880, 444 N.Y.S.2d 908, 429 N.E.2d 415 [1981];  People v. McClain, 35 N.Y.2d 483, 491, 364 N.Y.S.2d 143, 323 N.E.2d 685 [1974], cert. denied sub nom. Taylor v. New York, 423 U.S. 852, 96 S.Ct. 98, 46 L.Ed.2d 76 [1975] ).   While neither defense counsel nor defendant were given the opportunity to speak at the resentencing, County Court did resentence defendant in accordance with the original plea bargain and consistent with our prior decision (23 A.D.3d 707, 803 N.Y.S.2d 307 [2005], supra;  see People v. McConnell, 49 N.Y.2d 340, 346, 425 N.Y.S.2d 794, 402 N.E.2d 133 [1980];  People v. Toms, 2 A.D.3d 897, 898, 767 N.Y.S.2d 692 [2003] ).   Moreover, County Court's failure to allow defense counsel and defendant an opportunity to address the court was not preserved for appellate review (see People v. Green, supra at 880, 444 N.Y.S.2d 908, 429 N.E.2d 415;  People v. Regan, 88 A.D.2d 664, 450 N.Y.S.2d 516 [1982] ) and, under the unique facts of this case, we decline to exercise our interest of justice jurisdiction to address this issue (cf. People v. Roman, 153 A.D.2d 594, 595, 544 N.Y.S.2d 384 [1989] ).

ORDERED that the judgment is affirmed.

LAHTINEN, J.

CARDONA, P.J., CREW III, SPAIN and KANE, JJ., concur.