State of New York Supreme Court, Appellate Division Third Judicial Department
February 11, 2010
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
KEVIN J. MCNULTY, APPELLANT.
The opinion of the court was delivered by: Malone Jr., J.
MEMORANDUM AND ORDER
Calendar Date: January 12, 2010
Before: Peters, J.P., Rose, Lahtinen, Malone Jr. and Kavanagh, JJ.
Appeal from a judgment of the County Court of Delaware County (Becker, J.), rendered July 3, 2008, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the fifth degree.
Following defendant's guilty plea to the crime of criminal sale of a controlled substance in the fifth degree, County Court sentenced defendant to 11/2 years in prison, imposed a $1,000 fine and ordered restitution in the amount of $10. On appeal, defendant asserts that he should have been offered the opportunity to withdraw his guilty plea because neither the fine nor restitution was made part of the plea agreement. We agree.
Preliminarily, defendant's failure to preserve this issue through an objection at sentencing "is not fatal to his claim" (People v McDowell, 56 AD3d 955, 956 ; see People v Snyder, 23 AD3d 761, 763 ). Likewise, the waiver of his right to appeal does not preclude defendant from challenging the imposition of a sentence other than the one agreed to as part of the plea agreement (see People v Gordon, 53 AD3d 793, 794 ). Indeed, "as a matter of fundamental fairness, '[a] sentencing court may not impose a more severe sentence than one bargained for without providing defendant the opportunity to withdraw his [or her] plea of guilty'" (People v McCarthy, 56 AD3d 904, 905 , quoting People v Brown, 198 AD2d 901, 901 ). Here, a review of the plea minutes offers no indication that defendant was advised prior to entering his guilty plea that a fine or restitution would be part of his sentence.
Accordingly, before imposing an enhanced sentence, County Court should have offered defendant the opportunity to withdraw his plea or accept the enhanced sentence (see People v McCarthy, 56 AD3d at 905; People v Branch-El, 12 AD3d 785, 786 , lvs denied 4 NY3d 761, 763 ). Finally, we note that in the event that a fine ultimately becomes part of defendant's sentence, such fine must be imposed in accordance with Penal Law § 80.00 (see generally People v Carrillo, 257 AD2d 780, 783 , lv denied 93 NY2d 967 ).
Defendant's remaining contention, to the extent that it is properly before us, has been reviewed and is determined to be without merit.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Delaware County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
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