PEOPLE v. McDOWELL (2008)

Appeal from a judgment of the County Court of Warren County (Hall, J.), rendered January 31, 2007, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.

 Following defendant's plea of guilty to the crime of criminal possession of a weapon in the third degree, County Court sentenced him, as a second felony offender, to 2 to 4 years in prison and ordered restitution in the amount of $1,995.   On appeal, defendant first contends that he was not properly sentenced as a second felony offender in that the People's predicate felony offender statement did not strictly conform with CPL 400.21.   We do not agree.   As an initial matter, we note that defendant did not raise any objection to the predicate felony statement at sentencing;  thus, this contention is unpreserved (see People v. Robertson, 53 A.D.3d 791, 793, 861 N.Y.S.2d 492 [2008];  People v. Ruffin, 42 A.D.3d 582, 582, 838 N.Y.S.2d 269 [2007], lv. denied 9 N.Y.3d 881, 842 N.Y.S.2d 793, 874 N.E.2d 760 [2007] ).   In any event, the statement, combined with defendant's answers to the court's inquiries, established that at the time of sentencing defendant had been convicted of a violent felony offense within the 10-year statutory period, as tolled by an intervening period of incarceration (see CPL 400.21[2];  Penal Law § 70.06[1][b][iv], [v] ).  Accordingly, the court substantially complied with the statutory requirements (see People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 [1985];  People v. Buel, 53 A.D.3d 930, 932, 861 N.Y.S.2d 535 [2008];  People v. Ruffin, 42 A.D.3d at 582, 838 N.Y.S.2d 269).

 We do find persuasive defendant's argument that County Court erred in imposing restitution at the time of sentencing without first offering defendant the opportunity to withdraw his plea.  “Where ․ a plea agreement does not include mention of restitution, a defendant must be given the opportunity to either withdraw his plea or accept the greater sentence of restitution” (People v. Toms, 293 A.D.2d 768, 769, 739 N.Y.S.2d 652 [2002] [citation omitted];  accord People v. Snyder, 23 A.D.3d 761, 762, 803 N.Y.S.2d 779 [2005];  see People v. Harrington, 3 A.D.3d 737, 738-739, 770 N.Y.S.2d 792 [2004] ).   Here, the plea agreement was not committed to writing and the record contains no other indication that restitution was made part of the plea agreement (see People v. Branch-El, 12 A.D.3d 785, 786, 784 N.Y.S.2d 225 [2004], lv. denied 4 N.Y.3d 761, 792 N.Y.S.2d 5, 825 N.E.2d 137 [2005];  People v. Harrington, 3 A.D.3d at 738, 770 N.Y.S.2d 792).   Notably, the issue of restitution was not mentioned at the time of defendant's guilty plea, nor did it arise at the sentencing hearing until raised by the clerk after the court had sentenced defendant to a term of imprisonment.   Since County Court did not at that time offer defendant the option of withdrawing his plea or accepting the enhanced sentence, the matter must be remitted to County Court for that purpose (see People v. Snyder, 23 A.D.3d at 762-763, 803 N.Y.S.2d 779;  People v. Toms, 293 A.D.2d at 769, 739 N.Y.S.2d 652).   We note that defendant's failure to preserve this issue by objecting to the imposition of restitution at sentencing is not fatal to his claim (see People v. Snyder, 23 A.D.3d at 763, 803 N.Y.S.2d 779;  People v. Branch-El, 12 A.D.3d at 786, 784 N.Y.S.2d 225).

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

CARDONA, P.J.

SPAIN, CARPINELLO, MALONE JR. and STEIN, JJ., concur.