People v. Fulton

Appellate Division of the Supreme Court of New York

People v. Fulton

238 A.D.2d 439, 657 N.Y.S.2d 348, 1997 N.Y. App. Div. LEXIS 3785

Appellate Division of the Supreme Court of the State of New York·Decided April 14, 1997·Published·Cited by 9 cases

Opinion

—Appeal by the defendant from a judgment of the County Court, Orange County (Paño Z. Patsalos, J.), rendered May 30, 1995, convicting him of driving while intoxicated as a felony, upon his plea of guilty, and imposing sentence.

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

[440]*440The defendant was promised a definite sentence of one year imprisonment in return for his plea of guilty. At the time of sentencing, however, the court enhanced the sentence by adding a $1,000 fine. Since the fine was not part of the negotiated plea agreement, the defendant should have been given an opportunity either to withdraw his plea or to accept the greater sentence of a fine in addition to jail time (see, People v McKane, 227 AD2d 503; People v Cisco, 208 AD2d 643; People v Cowan, 168 AD2d 509). Accordingly, we now vacate the sentence and remit the matter to afford the defendant that opportunity. Mangano, P. J., Thompson, Joy, Goldstein and McGinity, JJ., concur.

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—Appeal by the defendant from a judgment of the County Court, Orange County (Paño Z. Patsalos, J.), rendered May 30, 1995, convicting him of driving while intoxicated as a felony, upon his plea of guilty, and imposing sentence.

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

[440]*440The defendant was promised a definite sentence of one year imprisonment in return for his plea of guilty. At the time of sentencing, however, the court enhanced the sentence by adding a $1,000 fine. Since the fine was not part of the negotiated plea agreement, the defendant should have been given an opportunity either to withdraw his plea or to accept the greater sentence of a fine in addition to jail time (see, People v McKane, 227 AD2d 503; People v Cisco, 208 AD2d 643; People v Cowan, 168 AD2d 509). Accordingly, we now vacate the sentence and remit the matter to afford the defendant that opportunity. Mangano, P. J., Thompson, Joy, Goldstein and McGinity, JJ., concur.

People v. Fulton, 238 A.D.2d 439, 657 N.Y.S.2d 348, 1997 N.Y. App. Div. LEXIS 3785 (N.Y. Ct. App. 1997).

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