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

11
KA 10-02351
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BRENDAN J. RHODES, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT, FOR RESPONDENT.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.), rendered July 19, 2010. The judgment convicted defendant,
upon his plea of guilty, of robbery in the first 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 Allegany County
Court for further proceedings in accordance with the following
Memorandum: Defendant appeals from a judgment convicting him, upon
his plea of guilty, of robbery in the first degree (Penal Law § 160.15
[4]). By failing to move to withdraw the plea or to vacate the
judgment of conviction, defendant failed to preserve for our review
his contention that his plea was not knowingly, voluntarily and
intelligently entered (see People v Diaz, 62 AD3d 1252, lv denied 12
NY3d 924), as well as his challenge to the factual sufficiency of the
plea allocution (see People v Lopez, 71 NY2d 662, 665; People v
Dowdell, 35 AD3d 1278, 1279, lv denied 8 NY3d 921). This case does
not fall within the rare exception to the preservation requirement
inasmuch as the plea allocution does not “cast[] significant doubt
upon the defendant’s guilt or otherwise call[] into question the
voluntariness of the plea” (Lopez, 71 NY2d at 666, see People v Neal,
56 AD3d 1211, lv denied 12 NY3d 761).

     By failing to object to the imposition of restitution at
sentencing, which was not a part of the plea agreement, defendant
failed to preserve for our review his contention that County Court
erred in enhancing the sentence by imposing restitution at sentencing
without affording him the opportunity to withdraw the plea (see People
v Delair, 6 AD3d 1152). We nevertheless exercise our power to review
that contention as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]), and we conclude that, because restitution
was not part of the plea agreement, the court should have afforded
                                 -2-                            11
                                                         KA 10-02351

defendant the opportunity to withdraw his plea before ordering him to
pay restitution (see People v Therrien, 12 AD3d 1045, 1046). In
addition, defendant failed to preserve for our review his contention
that the record is insufficient to support the amount of restitution
ordered (see generally People v Cooke, 21 AD3d 1339). We further
exercise our power to review that contention as a matter of discretion
in the interest of justice, however, and we conclude that the court
erred in failing to conduct a hearing to determine the amount of
restitution (see id.). 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.




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
