PEOPLE v. TEHONICA (2007)

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered September 5, 2006, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree.

Defendant was charged with assault in the second degree and criminal possession of a weapon in the third degree in connection with a bar fight where he struck an individual with a pool cue.   During the charge conference following the conclusion of the proof at trial, County Court denied defendant's request for a justification charge.   Defendant then pleaded guilty to attempted criminal possession of a weapon in the third degree in exchange for a prison sentence of 1 1/212 to 3 years, with a recommendation of shock incarceration.   The court imposed that sentence, but also ordered defendant to pay $10,889.40 in restitution.   Defendant appeals.

 By pleading guilty, defendant waived his right to challenge County Court's ruling on his request for a justification charge (see People v. Hansen, 95 N.Y.2d 227, 230-231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000];  People v. Thompson, 287 A.D.2d 794, 796, 731 N.Y.S.2d 261 [2001], lv. denied 97 N.Y.2d 688, 738 N.Y.S.2d 304, 764 N.E.2d 408 [2001] ).   This issue, which concerns an evidentiary ruling not a jurisdictional or constitutional matter, does not survive defendant's guilty plea (see People v. Hansen, 95 N.Y.2d at 230-231, 715 N.Y.S.2d 369, 738 N.E.2d 773).

 The People concede that restitution was not part of the plea agreement.   Consequently, defendant should have been given the opportunity to either withdraw his plea or accept the enhanced sentence, which included restitution (see People v. Snyder, 23 A.D.3d 761, 762, 803 N.Y.S.2d 779 [2005];  People v. Harrington, 3 A.D.3d 737, 739, 770 N.Y.S.2d 792 [2004] ).   We remit for that purpose.   If restitution is ordered, a hearing should be held regarding the appropriate amount (see People v. Snyder, 23 A.D.3d at 763, 803 N.Y.S.2d 779).

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed;  matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court's decision;  and, as so modified, affirmed.

KANE, J.

MERCURE, J.P., PETERS, CARPINELLO and LAHTINEN, JJ., concur.