Opinion
2012-10-25
The PEOPLE of the State of New York, Respondent, v. Darnile R. HARDEN, Appellant.
Theodore J. Stein, Woodstock, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Theodore J. Stein, Woodstock, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: LAHTINEN, J.P., MALONE JR., STEIN, McCARTHY and GARRY, JJ.
MALONE JR., J.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered August 3, 2010, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to one count of criminal sale of a controlled substancein the third degree and was sentenced, as a second felony offender, to four years in prison followed by two years of postrelease supervision and ordered to make restitution of $100. On this appeal from the judgment of conviction, defendant first argues that County Court did not advise him at the time of his plea that he would be sentenced as a second felony offender. However, the record before us fails to indicate that defendant preserved this claim by moving to either withdraw the plea or vacate the judgment of conviction ( see People v. Mayers, 74 N.Y.2d 931, 932, 550 N.Y.S.2d 266, 549 N.E.2d 468 [1989];People v. Campbell, 66 A.D.3d 1059, 1059–1060, 886 N.Y.S.2d 242 [2009] ). Nor did he preserve by timely objection his further contention that the court failed to comply with the requirements of CPL 400.21 ( see People v. Washington, 89 A.D.3d 1140, 1142, 931 N.Y.S.2d 787 [2011],lv. denied18 N.Y.3d 963, 944 N.Y.S.2d 492, 967 N.E.2d 717 [2012];People v. Califano, 84 A.D.3d 1504, 1506–1507, 923 N.Y.S.2d 299 [2011],lv. denied17 N.Y.3d 805, 929 N.Y.S.2d 564, 953 N.E.2d 802 [2011] ). However, the People concede that restitution was not a part of the plea agreement. Accordingly, the sentence must be vacated and the matter remitted to County Court to either impose the agreed-upon sentence or give defendant the opportunity to withdraw his plea before imposing the enhanced sentence ( see People v. Galietta, 75 A.D.3d 753, 754–755, 904 N.Y.S.2d 804 [2010];People v. Gantt, 63 A.D.3d 1379, 1379–1380, 881 N.Y.S.2d 224 [2009] ).
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Ulster County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.