People v. Cisco

208 A.D.2d 643, 618 N.Y.S.2d 239

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Goodman, J.) rendered September 30, 1992, convicting him of assault in the first degree, upon his plea of guilty, and imposing an indeterminate sentence of four to eight years imprisonment and restitution in the amount of $22,445.55.

Ordered that the judgment is modified, on the law, by vacating the sentence that was imposed; as so modified, the judgment is affirmed, and the matter is remitted to County Court, Nassau County, for further proceedings consistent herewith.

The plea minutes in this case do not indicate that the defendant agreed to the payment of $22,445.55 restitution as a condition of the sentence. Although a court is, of course, free to reserve the right to order restitution with or without the defendant’s consent, the guilty plea in this case was negotiated with terms that did not include restitution. Accordingly, at sentencing, the defendant should have been given an opportunity either to withdraw his plea or to accept the enhanced sentence of restitution and a prison sentence (see, People v Cowan, 168 AD2d 509; People v Lopez, 135 AD2d 739, 739-740). Bracken, J. P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.