PEOPLE v. HENDRIX

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Antwane HENDRIX, Defendant-Appellant.  (Appeal No. 2.)

Decided: December 31, 2003

PRESENT:  GREEN, J.P., WISNER, GORSKI, AND HAYES, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Marcy H. Hagen of Counsel), for Plaintiff-Respondent.

 Defendant appeals from three judgments convicting him upon his pleas of guilty during a single plea proceeding of, respectively, attempted assault in the first degree (Penal Law §§ 110.00, 120.10[1] ) (appeal No. 1), criminal possession of stolen property in the fourth degree (§ 165.45 [1] ) (appeal No. 2), and criminal possession of a weapon in the third degree (§ 265.02[4] ) (appeal No. 3).   There is no merit to the contention of defendant that his waiver of the right to appeal entered as part of the plea agreement is invalid.   Although it appears from the record that the waiver was not discussed with defendant prior to the plea proceeding, “[t]he facts and circumstances surrounding the waiver establish that it was voluntary, knowing and intelligent” (People v. Coleman [appeal No. 1], 219 A.D.2d 827, 827, 632 N.Y.S.2d 907;  see People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108).   In any event, contrary to defendant's contention, the agreed-upon terms of incarceration imposed by Supreme Court are not unduly harsh or severe.

 We agree with defendant, however, that the court erred in enhancing the sentence imposed on the conviction of criminal possession of stolen property in the fourth degree by ordering defendant to pay restitution in the amount of $2,015 without affording him the opportunity to withdraw his plea (see People v. Austin, 275 A.D.2d 913, 715 N.Y.S.2d 173).   Moreover, the court improperly determined the amount of restitution without conducting a hearing (see id.). Inasmuch as the judgments on appeal were entered following a single plea proceeding (cf.  People v. Fuggazzatto, 62 N.Y.2d 862, 863, 477 N.Y.S.2d 619, 466 N.E.2d 159), we modify the judgments by vacating the sentences, and we remit the matters to Supreme Court, Erie County, to impose the sentences promised or afford defendant the opportunity to withdraw his pleas of guilty.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following.

MEMORANDUM: