Opinion
509 KA 14-00379
06-12-2015
The PEOPLE of the State of New York, Respondent, v. Henry S. SPENCER, IV, Defendant–Appellant.
Christopher Hammond, Cooperstown, for Defendant–Appellant.
Christopher Hammond, Cooperstown, for Defendant–Appellant.
PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM:On appeal from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20 ) and grand larceny in the fourth degree (§ 155.30[7] ), defendant contends that County Court erred in imposing an enhanced sentence without specifically warning him of that possibility if he failed to appear for sentencing. The record establishes that defendant was not informed at the time of his plea that he must return for sentencing in order to avoid the imposition of an enhanced sentence. Although defendant failed to preserve his contention for our review by objecting to the enhanced sentence or by moving to withdraw his plea or to vacate the judgment of conviction (see People v. Fortner, 23 A.D.3d 1058, 1058, 803 N.Y.S.2d 470 ; People v. Sundown, 305 A.D.2d 1075, 1076, 758 N.Y.S.2d 736 ), we nevertheless exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We conclude that the court erred in imposing an enhanced sentence because it “did not advise defendant that a harsher sentence than he bargained for could be imposed if [he] failed to appear at sentencing” (People v. Ortiz, 244 A.D.2d 960, 961, 665 N.Y.S.2d 168 ; see Sundown, 305 A.D.2d at 1076, 758 N.Y.S.2d 736 ).
We therefore modify the judgment by vacating the sentence, and we remit the matter to Allegany County Court to impose the promised sentence or to afford defendant the opportunity to withdraw his plea (see Fortner, 23 A.D.3d at 1058, 803 N.Y.S.2d 470 ). In light of our determination, we do not address defendant's remaining contentions.It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the sentence, and as modified the judgment is affirmed, and the matter is remitted to Allegany County Court for further proceedings.