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People v. Hurdle

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


February 23, 2010

THE PEOPLE, ETC., RESPONDENT,
v.
WALTER HURDLE, APPELLANT.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Berkowitz, J.), rendered August 11, 2008, convicting him of attempted criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence, including restitution in the sum of $631.30.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., HOWARD MILLER, JOHN M. LEVENTHAL and CHERYL E. CHAMBERS, JJ.

(Ind. No. 2568/07)

DECISION & ORDER

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the provision of the sentence directing the defendant to pay restitution in the sum of $631.30; as so modified, the judgment is affirmed.

The plea minutes do not indicate that the plea of guilty was negotiated with terms that included restitution. At the time of sentencing, however, the court imposed restitution of $631.30 as a component of sentence. On appeal, the People consent to vacatur of the restitution provision of the sentence. Accordingly, reaching the issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6]), we modify the sentence by vacating the provision directing the defendant to pay restitution in the sum of $631.30 so as to conform to the promise made to him in exchange for his plea of guilty.

The defendant's remaining contentions in his supplemental pro se brief either have been waived or are without merit.

RIVERA, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.

20100223

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