PEOPLE v. SNYDER (2005)

Appeals (1) from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered March 10, 2003, convicting defendant upon his plea of guilty of the crime of rape in the second degree, (2) from a judgment of said court, rendered March 10, 2003, convicting defendant upon his plea of guilty of the crime of arson in the third degree, and (3) from a judgment of said court, rendered March 10, 2003, convicting defendant upon his plea of guilty of the crime of sodomy in the second degree.

In satisfaction of three separate indictments, defendant pleaded guilty to the crimes of rape in the second degree, arson in the third degree and sodomy in the second degree.   In accordance with the plea agreement, defendant waived his right to appeal and was sentenced as a second felony offender to concurrent prison terms of 3 1/212 to 7 years on the sodomy conviction, 3 1/212 to 7 years on the rape conviction and 4 1/212 to 9 years on the arson conviction.   At sentencing, County Court also ordered defendant to pay $10,991.92 in restitution as part of defendant's sentence for the arson conviction.   On appeal, we granted the application of defendant's counsel for leave to withdraw but withheld decision after our review of the record revealed that County Court's restitution order implicated a potentially nonfrivolous issue (10 A.D.3d 813, 781 N.Y.S.2d 920 [2004] ) with respect to the arson conviction.

 Having been assigned new counsel, defendant argues that County Court erred by ordering defendant to pay restitution on the arson conviction without offering him the opportunity to withdraw his plea or accept the enhanced sentence.   We agree.  “Where, as here, 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. Neu, 1 A.D.3d 798, 798, 767 N.Y.S.2d 313 [2003];  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] ).

 Inasmuch as there is no indication here that restitution was ever made a part of the plea agreement on the arson charge and County Court subsequently failed to give defendant the option of withdrawing his plea or accepting the greater sentence, remittal is required on the arson charge for that purpose or, alternatively, the imposition of the sentence promised (see People v. Toms, 2 A.D.3d 897, 898, 767 N.Y.S.2d 692 [2003];  People v. Neu, 1 A.D.3d 798, 799, 767 N.Y.S.2d 313 [2003] ).   Contrary to the People's assertion, defendant's failure to preserve this issue by objecting at sentencing is not fatal to his claim (see People v. Branch-El, supra at 786, 784 N.Y.S.2d 225;  compare People v. Sartori, 8 A.D.3d 748, 749, 777 N.Y.S.2d 792 [2004] ).   Finally, although defendant did not request a hearing on restitution, we determine that one is required because the amount set by County Court is not sufficiently supported by the record (see Penal Law § 60.27[2];  CPL 400.30;  People v. Consalvo, 89 N.Y.2d 140, 144-146, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996];  People v. Harrington, 3 A.D.3d 737, 739, 770 N.Y.S.2d 792 [2004] ).

ORDERED that the judgment convicting defendant of the crime of arson in the third degree 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.

ORDERED that the judgments convicting defendant of the crimes of rape in the second degree and sodomy in the second degree are affirmed.

LAHTINEN, J.

CARDONA, P.J., MERCURE, CARPINELLO and MUGGLIN, JJ., concur.