PEOPLE v. ROBINSON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Jonathan ROBINSON, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND LAWTON, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo-McLaughlin of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the second degree (Penal Law § 140.25[2] ).   Although defendant failed to preserve for our review his contention that County Court erred in enhancing the sentence by imposing restitution at sentencing without affording him the opportunity to withdraw his plea (see People v. Therrien, 12 A.D.3d 1045, 1046, 784 N.Y.S.2d 771;  People v. Delair, 6 A.D.3d 1152, 775 N.Y.S.2d 664), we nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a];  People v. Cooke, 21 A.D.3d 1339, 804 N.Y.S.2d 516 [2005]).   Here, as in the case of defendant's codefendant (Cooke, 21 A.D.3d 1339, 804 N.Y.S.2d 516), we conclude that, because restitution was not part of the plea agreement, the court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution (see Therrien, 12 A.D.3d at 1046, 784 N.Y.S.2d 771;  Delair, 6 A.D.3d at 1152, 775 N.Y.S.2d 664;  People v. Harrington, 3 A.D.3d 737, 738-739, 770 N.Y.S.2d 792).   In addition, although defendant failed to preserve for our review his contention that the court erred in relying exclusively upon the victim impact statement attached to the presentence report in determining the amount of restitution (see Therrien, 12 A.D.3d at 1046, 784 N.Y.S.2d 771), we nevertheless further exercise our power to review that contention as a matter of discretion in the interest of justice, and we conclude that the court erred in failing to conduct a hearing to determine the amount of restitution (see Cooke, 21 A.D.3d at 1339, 804 N.Y.S.2d 516;  Therrien, 12 A.D.3d at 1046, 784 N.Y.S.2d 771).   We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court to impose the promised sentence or to afford defendant the opportunity to withdraw his plea.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for further proceedings.

MEMORANDUM: