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

1371
KA 14-00380
PRESENT: SCUDDER, P.J., CENTRA, CARNI, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HENRY S. SPENCER, IV, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (AMBER L. KERLING
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cattaraugus County Court (Ronald D.
Ploetz, J.), rendered January 13, 2014. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree
(two counts).

     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 Cattaraugus County
Court for further proceedings in accordance with the following
memorandum: On appeal from a judgment of conviction convicting him
upon his plea of guilty of two counts of burglary in the third degree
(Penal Law § 140.20), defendant contends that his waiver of the right
to appeal is not valid, and he challenges the severity of his
sentence. We agree with defendant that his waiver of the right to
appeal is invalid “inasmuch as the minimal perfunctory inquiry made by
County Court was insufficient to ‘establish that [he] understood that
the right to appeal is separate and distinct from those rights
automatically forfeited upon a plea of guilty’ ” (People v Finch, 120
AD3d 1524, 1525, quoting People v Lopez, 6 NY3d 248, 256; see People v
Hunt, 125 AD3d 1275, 1276). We nevertheless conclude that the
sentence is not unduly harsh or severe.

     We agree with defendant, however, that the court erred in
enhancing his sentence by imposing restitution without affording him
the opportunity to withdraw his plea, inasmuch as restitution was not
a part of the plea agreement (see People v Pickett, 90 AD3d 1526,
1527). Even assuming, arguendo, that defendant executed a valid
waiver of the right to appeal, defendant’s challenge to the imposition
of restitution would not be encompassed by the waiver inasmuch as
restitution was not included in the terms of the plea agreement (see
People v Tessitore, 101 AD3d 1621, 1622, lv denied 20 NY3d 1104).
                                 -2-                         1371
                                                        KA 14-00380

Although defendant did not object to the imposition of restitution at
sentencing and thus failed to preserve that contention for our review
(see Pickett, 90 AD3d at 1527), we nevertheless exercise our power to
review it as a matter of discretion in the interest of justice (see
CPL 460.15 [3] [c]). 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 People v Wilson, 125 AD3d 1303, 1303-1304; Pickett, 90
AD3d at 1527).




Entered:   December 31, 2015                   Frances E. Cafarell
                                               Clerk of the Court
