Opinion
02-06-2015
The PEOPLE of the State of New York, Respondent, v. Pierre C. WILSON, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), For Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), For Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI AND WHALEN, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of six counts of robbery in the first degree ( Penal Law § 160.15 [3 ] ) and 23 counts of robbery in the second degree ( § 160.10[1] ; [2] [a], [b] ). We reject defendant's contention that his sentence is unduly harsh and severe. We agree with defendant, however, that, because restitution was not part of the plea agreement, County Court should have afforded him the opportunity to withdraw his plea before ordering him to pay restitution (see People v. Ponder, 42 A.D.3d 880, 882, 838 N.Y.S.2d 767, lv. denied 9 N.Y.3d 925, 844 N.Y.S.2d 180, 875 N.E.2d 899 ; People v. Robinson, 21 A.D.3d 1356, 1357, 804 N.Y.S.2d 514 ). Although defendant failed to preserve his contention for our review, we exercise our power to review it as a matter of discretion in the interest of justice (see Ponder, 42 A.D.3d at 882, 838 N.Y.S.2d 767 ). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court to impose the promised sentence or to afford defendant the opportunity to withdraw his plea.
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 Monroe County Court for further proceedings.