People v. Ortiz

244 A.D.2d 960, 665 N.Y.S.2d 168, 1997 N.Y. App. Div. LEXIS 12363

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Monroe County Court for further proceedings in accordance with the following Memorandum: Defendant pleaded guilty to robbery in the third degree and was promised sentencing as a youthful offender to a term of shock probation. He failed to appear on the scheduled sentencing date and was picked up on a bench warrant. Based upon defendant’s failure to appear for sentencing, County Court denied defendant youthful offender treatment and sentenced defendant to lVs to 4 years’ imprisonment.

The court did not advise defendant that a harsher sentence than he bargained for could be imposed if defendant failed to appear at sentencing (see, People v Moreno, 196 AD2d 850; People v Michael, 190 AD2d 758; cf., People v Howington, 216 AD2d 960, lv denied 86 NY2d 781). Therefore, the court erred in imposing an enhanced sentence without affording defendant an opportunity to withdraw his guilty plea (see, People v Hottois, 244 AD2d 971 [decided herewith]; People v McAllister, 216 AD2d 961, 962; People v Williams, 195 AD2d 1040, 1041). Thus, we modify the judgment by vacating the sentence, and we remit the matter to Monroe County Court to impose the sentence promised or to afford defendant the opportunity to withdraw his plea. (Appeal from Judgment of Monroe County Court, Bristol, J.—Robbery, 3rd Degree.) Present—Green, J. P., Lawton, Wisner, Balio and Boehm, JJ.