Opinion
2014-12-17
The PEOPLE, etc., respondent, v. Erica PATTERSON, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Efman, J.), rendered September 23, 2013, convicting her of criminal mischief in the third degree, upon her plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.
Although a court is free to reserve the right to order restitution as part of a plea bargain, the plea minutes in this case do not indicate that the plea of guilty was negotiated with terms that included restitution ( see People v. Kegel, 55 A.D.3d 625, 625, 867 N.Y.S.2d 96). Accordingly, at sentencing, the defendant should have been given an opportunity either to withdraw her plea or to accept the enhanced sentence ( see id.). Since the defendant was not afforded this opportunity, we vacate the sentence imposed, and remit the matter to the Supreme Court, Suffolk County, to allow the Supreme Court to (1) impose the sentence promised to the defendant at the plea proceedings, (2) afford the defendant the opportunity to accept the previously imposed sentence, including the direction that she pay restitution in the specified sums, or (3) in the absence of either of these results, permit the defendant to withdraw her plea of guilty ( see People v. Pettress, 109 A.D.3d 555, 556, 970 N.Y.S.2d 466).