        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1313
KA 07-00049
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CLIFFORD K. PICKETT, DEFENDANT-APPELLANT.


KATHLEEN P. REARDON, ROCHESTER, FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered October 6, 2006. The judgment convicted
defendant, upon his plea of guilty, of manslaughter in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by vacating the sentence and as modified the
judgment is affirmed, and the matter is remitted to Jefferson County
Court for further proceedings in accordance with the following
Memorandum: On a prior appeal, we affirmed the judgment convicting
defendant upon his plea of guilty of manslaughter in the second degree
under Penal Law § 125.15 (1) (People v Pickett, 49 AD3d 1207, lv
denied 10 NY3d 963). We subsequently granted defendant’s motion for a
writ of error coram nobis on the ground that appellate counsel had
failed to raise an issue on appeal that may have merit, i.e., that
County Court erred in ordering restitution inasmuch as it was not part
of the plea bargain (People v Pickett, 67 AD3d 1458), and we vacated
our prior order. We now consider the appeal de novo.

     We agree with defendant that the court erred in enhancing the
sentence by imposing restitution inasmuch as restitution was not
included in the plea bargain (see People v Pett, 74 AD3d 1891; People
v Hunter, 72 AD3d 1536; People v Cooke, 21 AD3d 1339). Although
defendant failed to preserve his contention for our review (see
Hunter, 72 AD3d 1536; Cooke, 21 AD3d 1339), we nevertheless exercise
our power to review it as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). We therefore modify the judgment by
vacating the sentence, and we remit the matter to County Court to
impose the promised sentence or to afford defendant the opportunity to
withdraw his plea (see Pett, 74 AD3d 1891; Hunter, 72 AD3d 1536). In
view of our determination, we need not address defendant’s remaining
                               -2-                 1313
                                              KA 07-00049

contention.




Entered:   December 23, 2011         Frances E. Cafarell
                                     Clerk of the Court
