People v. Vogel

Appellate Division of the Supreme Court of New York

People v. Vogel

20 A.D.3d 865, 798 N.Y.S.2d 640, 2005 N.Y. App. Div. LEXIS 7486

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 2005

StatusPublished

Cited by1 cases

This text of 20 A.D.3d 865 (People v. Vogel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Vogel, 20 A.D.3d 865, 798 N.Y.S.2d 640, 2005 N.Y. App. Div. LEXIS 7486 (N.Y. Ct. App. 2005).

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Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered July 1, 2003. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is modified as a matter of discretion in the interest of justice and on the law by vacating the sentence of imprisonment and as modified the judgment is affirmed, and the matter is remitted to Wyoming County Court for resentencing in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree (Penal Law § 120.05 [2]). We agree with defendant that the judgment must be modified by vacating the sentence of imprisonment imposed because the record establishes that, although the People agreed as part of the negotiated plea bargain that they would make no sentencing recommendation, they failed to honor that agreement at the time of sentencing (see People v Oakes, 252 AD2d 661 [1998]; cf. People v Harris, 4 AD3d 770 [2004], lv denied 2 NY3d 762 [2004]). Although defendant failed to preserve this issue for our review, we exercise our power to address it as a matter of discretion in the interest of justice (see Oakes, 252 AD2d at 662). We therefore modify the judgment accordingly, and we remit the matter to County Court for resentencing before a different judge in accordance with our decision herein (see People v Tindle, 61 NY2d 752, 754 [1984]; People v Hoeltzel, 290 AD2d 587 [2002]). We note, however, that defendant stipulated to the amount of restitution imposed and thereby waived his right to challenge the amount of restitution, ordered (see People v Huffman, 288 AD2d 907, 908 [2001], lv denied 97 NY2d 755 [2002]; see also [866]*866People v Sweeney, 4 AD3d 769 [2004], lv denied 2 NY3d 807 [2004]). We therefore affirm the judgment with respect to the amount of restitution ordered.

All concur except Scudder, J., who dissents in part and votes to affirm in the following memorandum:

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Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered July 1, 2003. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is modified as a matter of discretion in the interest of justice and on the law by vacating the sentence of imprisonment and as modified the judgment is affirmed, and the matter is remitted to Wyoming County Court for resentencing in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree (Penal Law § 120.05 [2]). We agree with defendant that the judgment must be modified by vacating the sentence of imprisonment imposed because the record establishes that, although the People agreed as part of the negotiated plea bargain that they would make no sentencing recommendation, they failed to honor that agreement at the time of sentencing (see People v Oakes, 252 AD2d 661 [1998]; cf. People v Harris, 4 AD3d 770 [2004], lv denied 2 NY3d 762 [2004]). Although defendant failed to preserve this issue for our review, we exercise our power to address it as a matter of discretion in the interest of justice (see Oakes, 252 AD2d at 662). We therefore modify the judgment accordingly, and we remit the matter to County Court for resentencing before a different judge in accordance with our decision herein (see People v Tindle, 61 NY2d 752, 754 [1984]; People v Hoeltzel, 290 AD2d 587 [2002]). We note, however, that defendant stipulated to the amount of restitution imposed and thereby waived his right to challenge the amount of restitution, ordered (see People v Huffman, 288 AD2d 907, 908 [2001], lv denied 97 NY2d 755 [2002]; see also [866]*866People v Sweeney, 4 AD3d 769 [2004], lv denied 2 NY3d 807 [2004]). We therefore affirm the judgment with respect to the amount of restitution ordered.

All concur except Scudder, J., who dissents in part and votes to affirm in the following memorandum:

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20 A.D.3d 865, 798 N.Y.S.2d 640, 2005 N.Y. App. Div. LEXIS 7486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-vogel-nyappdiv-2005.

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