                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered:    November 17, 2016               107261
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                                                        107263
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

THOMAS NESBITT,
                    Appellant.
________________________________


Calendar Date:    October 21, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

                              __________


     Lisa A. Burgess, Indian Lake, for appellant.

      Craig P. Carriero, District Attorney, Malone (Jennifer M.
Hollis of counsel), for respondent.

                              __________


Clark, J.

      Appeal from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered December 1, 2014, convicting
defendant upon his plea of guilty of the crimes of criminal
possession of a controlled substance in the third degree,
criminal sale of a controlled substance in the third degree and
criminal contempt in the second degree.

      Defendant pleaded guilty to criminal possession of a
controlled substance in the third degree, criminal sale of a
controlled substance in the third degree and criminal contempt in
the second degree in full satisfaction of four accusatory
instruments, including indictment Nos. I-83-2014 and I-80-2014,
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and waived his right to appeal. County Court thereafter
sentenced defendant, as a second felony offender, to consecutive
sentences of three years in prison, to be followed by three years
of postrelease supervision, on the criminal possession of a
controlled substance and criminal sale of a controlled substance
convictions, and ordered restitution in the amount of $300 for
each conviction. The court also sentenced defendant to one year
in jail for the criminal contempt conviction. Defendant now
appeals.

      Defendant contends that, by imposing the one-year sentence
on the criminal contempt conviction, County Court improperly
enhanced his sentence without offering him an opportunity to
withdraw his plea. While this issue survives his appeal waiver,
it is unpreserved for our review due to his failure to object on
this ground at sentencing or move to withdraw his plea on this
basis (see People v Raleigh, 121 AD3d 1412, 1413 [2014]; People v
DePalma, 99 AD3d 1116, 1116-1117 [2012], lv denied 20 NY3d 1010
[2013]).

      Defendant also contends that County Court improperly
ordered $300 in restitution on his conviction for criminal
possession of a controlled substance in the third degree under
indictment No. I-80-2014.1 Pursuant to the plea agreement, the
People requested and defendant agreed to pay $300 in restitution
on his conviction for criminal sale of a controlled substance in
satisfaction of indictment No. I-83-2014, which represented funds
used in a controlled buy. Although there was no similar
agreement regarding the guilty plea to the criminal possession


     1
         Defendant was charged in indictment No. I-80-2014 with
criminal possession of a controlled substance in the third
degree, criminal possession of a controlled substance in the
fourth degree and speeding in violation of the Vehicle and
Traffic Law. He was charged in indictment No. I-83-2014 with two
counts of criminal sale of a controlled substance in the third
degree and two counts of criminal possession of a controlled
substance in the third degree.
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charge in satisfaction of indictment No. I-80-2014, the People
requested the restitution at sentencing, without offering any
evidence in support of restitution under this charge. Although
defendant's challenge to the restitution ordered for the criminal
possession conviction is unpreserved due to his failure to
request a hearing or object at the time of sentencing (see
People v Vasavada, 93 AD3d 893, 894 [2012], lv denied 19 NY3d 978
[2012]; People v Drayton, 79 AD3d 1529, 1530 [2010]), we find it
appropriate to exercise our interest of justice jurisdiction.
Accordingly, the judgment is modified by reversing the sentence
only insofar as it directs defendant to pay restitution in the
amount of $300 pursuant to his conviction under indictment No.
I-80-2014 and remit the matter for the sole purpose of a
restitution hearing or a redetermination of restitution (see
People v Morehouse, 140 AD3d 1202, 1204 [2016], lv denied 28 NY3d
934 [2016]; People v Lyman, 119 AD3d 968, 970 [2014], lv denied
27 NY3d 1153 [2016]).

     McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur.



      ORDERED that the judgment is modified, as a matter of
discretion in the interest of justice, by reversing so much
thereof as ordered restitution in the amount of $300 pursuant to
defendant's conviction under indictment No. I-80-2014; matter
remitted to the County Court of Franklin County for further
proceedings not inconsistent with this Court's decision; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
