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

124
KA 13-00885
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GARY KELLY, DEFENDANT-APPELLANT.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered April 24, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the third 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 Niagara County
Court for further proceedings in accordance with the following
memorandum: On appeal from a judgment convicting him upon his plea of
guilty of attempted criminal possession of a controlled substance in
the third degree (Penal Law §§ 110.00, 220.16 [12]), defendant
contends that County Court erred in imposing an enhanced sentence
without affording him an opportunity to withdraw his plea. We agree.
Initially, we note that defendant waived his right to appeal, but we
conclude that the waiver of the right to appeal does not encompass his
allegation that the court improperly enhanced his sentence (see People
v Joyner, 19 AD3d 1129, 1129; People v Lighthall, 6 AD3d 1170, 1171,
lv denied 3 NY3d 643). Although defendant failed to preserve his
contention for our review by failing to object to the enhanced
sentence or by moving to withdraw his plea or to vacate the judgment
of conviction (see People v Fortner, 23 AD3d 1058, 1058; People v
Sundown, 305 AD2d 1075, 1076), we nevertheless exercise our power to
review it as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). As part of the plea, the court stated that it
would sentence defendant to, inter alia, a determinate term of
incarceration of between one and three years. There is no indication
that defendant violated any condition of the plea (cf. People v
Sprague, 82 AD3d 1649, 1649, lv denied 17 NY3d 801). Consequently, we
agree with defendant that the court erred in enhancing the sentence by
imposing a determinate term of incarceration that exceeded the
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                                                         KA 13-00885

promised sentencing range (see People v Smith, 101 AD3d 1677, 1677, lv
denied 20 NY3d 1104; People v Rhodes, 91 AD3d 1280, 1282). We
therefore modify the judgment by vacating the sentence, and we remit
the matter to County Court to impose a sentence within the promised
sentencing range or to afford defendant the opportunity to withdraw
his plea.




Entered:   March 20, 2015                      Frances E. Cafarell
                                               Clerk of the Court
