Opinion
KA 18–00489 1018
11-15-2019
The PEOPLE of the State of New York, Respondent, v. Darnell CLEVELAND, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed and the matter is remitted to Erie County Court for resentencing in accordance with the following memorandum: On appeal from a judgment convicting him upon his plea of guilty of, inter alia, burglary in the second degree (Penal Law
§ 140.25 [2] ), defendant contends, and the People concede, that his confession of judgment with respect to restitution must be voided because the amount thereof differs from the amount of restitution contemplated by the plea bargain. Although not raised by the parties, we conclude that defendant's sentence must be vacated in its entirety because County Court failed to pronounce the sentence of restitution in open court (see People v. Guadalupe , 129 A.D.3d 989, 989, 10 N.Y.S.3d 450 [2d Dept. 2015] ; see generally People v. Petrangelo , 159 A.D.3d 1559, 1560, 70 N.Y.S.3d 438 [4th Dept. 2018] ). " CPL 380.20 and 380.40(1) collectively require that courts ‘must pronounce sentence in every case where a conviction is entered’ and that—subject to limited exceptions not relevant here—‘[t]he defendant must be personally present at the time sentence is pronounced’ "( People v. Sparber , 10 N.Y.3d 457, 469, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] ). Restitution is a component of the sentence to which CPL 380.20 and CPL 380.40(1) apply (see People v. Nieves , 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ; People v. Fuller , 57 N.Y.2d 152, 156–157, 455 N.Y.S.2d 253, 441 N.E.2d 563 [1982] ). The requirements of CPL 380.20 and CPL 380.40(1) are "unyielding" ( Sparber , 10 N.Y.3d at 469, 859 N.Y.S.2d 582, 889 N.E.2d 459 ), and their violation may be addressed on direct appeal notwithstanding a valid waiver of the right to appeal or the defendant's failure to preserve the issue for appellate review (see Guadalupe , 129 A.D.3d at 989, 10 N.Y.S.3d 450 ; see generally People v. Acevedo , 17 N.Y.3d 297, 301, 929 N.Y.S.2d 55, 952 N.E.2d 1047 [2011] ). When the sentencing court fails to orally pronounce a component of the sentence, the sentence must be vacated and the matter remitted for resentencing in compliance with the statutory scheme (see Sparber , 10 N.Y.3d at 471, 859 N.Y.S.2d 582, 889 N.E.2d 459 ; Petrangelo , 159 A.D.3d at 1560, 70 N.Y.S.3d 438 ;see generally People v. Lingle , 16 N.Y.3d 621, 634–635, 926 N.Y.S.2d 4, 949 N.E.2d 952 [2011] ).
Here, the court failed to orally pronounce the restitution component of defendant's sentence in his presence as required by CPL 380.20 and CPL 380.40(1). We therefore modify the judgment by vacating defendant's sentence, and we remit the matter to County Court for resentencing (see Guadalupe , 129 A.D.3d at 989, 10 N.Y.S.3d 450 ; People v. Bauer , 229 A.D.2d 502, 502–503, 645 N.Y.S.2d 323 [2d Dept. 1996] ). Upon remittal, the court should address and reconcile the discrepancy between the amount of restitution contemplated by the plea bargain ($350) and the amount of restitution specified in the written confession of judgment ($841.12).