Opinion
2013-04-3
The PEOPLE, etc., respondent, v. Jan POZNANSKI, appellant.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant, and appellant pro se. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Barbara Kornblau and Tammy J. Smiley of counsel; Matthew C. Frankel on the brief), for respondent.
Steven A. Feldman, Uniondale, N.Y. (Arza Feldman of counsel), for appellant, and appellant pro se. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Barbara Kornblau and Tammy J. Smiley of counsel; Matthew C. Frankel on the brief), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the County Court, Nassau County (Robbins, J.), rendered July 16, 2007, convicting him of burglary in the first degree (two counts), upon his plea of guilty, and imposing sentence, including a direction that the defendant pay restitution in the sum of $570.50.
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 County Court, Nassau County, for further proceedings in accordance herewith.
The defendant challenges the factual sufficiency of his plea allocution. Contrary to the People's contention, the defendant's waiver of his right to appeal was not valid ( see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145) and, therefore, the purported waiver does not bar review of the defendant's claim. Nevertheless, the defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review ( see People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160;People v. Jones, 73 A.D.3d 1386, 1387, 900 N.Y.S.2d 797;People v. Williams, 70 A.D.3d 1059, 1060, 894 N.Y.S.2d 763;People v. Kelly, 50 A.D.3d 921, 854 N.Y.S.2d 674). Moreover, contrary to the defendant's contention, the narrow “rare case” exception to the preservation rule does not apply herein ( see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Morgan, 84 A.D.3d 1594, 922 N.Y.S.2d 666).
However, the County Court improperly directed the defendant to pay restitution in the sum of $570.50. Although a court is free to reserve the right to order restitution as part of a plea agreement, the plea minutes do not indicate that a plea of guilty was negotiated with terms that included restitution. Accordingly, at sentencing, the defendant should have been “given an opportunity either to withdraw his plea or to accept the enhanced sentence that included both restitution and a prison sentence” ( People v. Ortega, 61 A.D.3d 705, 706, 875 N.Y.S.2d 909;see People v. Suarez, 103 A.D.3d 673, 959 N.Y.S.2d 272;People v. Esquivel, 100 A.D.3d 652, 953 N.Y.S.2d 163,lv. denied20 N.Y.3d 1011, 960 N.Y.S.2d 354, 984 N.E.2d 329;People v. Gibson, 88 A.D.3d 1012, 931 N.Y.S.2d 530;People v. Kegel, 55 A.D.3d 625, 867 N.Y.S.2d 96;People v. Henderson, 44 A.D.3d 873, 874, 843 N.Y.S.2d 678) or for the court to impose the agreed-upon sentence.
Accordingly, we vacate the sentence imposed, and remit the matter to the County Court, Nassau County, to allow the County Court to (1) impose the sentence promised to the defendant at the plea proceeding, (2) afford the defendant the opportunity to accept the previously imposed sentence, including the direction that he pay restitution in the sum of $570.50, or (3), in the absence of either of those results, permit the defendant to withdraw his plea of guilty ( see People v. Sosa–Rodriguez, 63 A.D.3d 861, 863, 880 N.Y.S.2d 709).
In light of our determination, we need not address the defendant's remaining contention, raised in his pro se supplemental brief.