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

509
KA 14-00379
PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HENRY S. SPENCER, IV, DEFENDANT-APPELLANT.


CHRISTOPHER HAMMOND, COOPERSTOWN, FOR DEFENDANT-APPELLANT.


     Appeal from a judgment of the Allegany County Court (Terrence M.
Parker, J.), rendered January 15, 2014. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree
and grand larceny in the fourth 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: On appeal from a judgment convicting him upon his plea of
guilty of burglary in the third degree (Penal Law § 140.20) and grand
larceny in the fourth degree (§ 155.30 [7]), defendant contends that
County Court erred in imposing an enhanced sentence without
specifically warning him of that possibility if he failed to appear
for sentencing. The record establishes that defendant was not
informed at the time of his plea that he must return for sentencing in
order to avoid the imposition of an enhanced sentence. Although
defendant failed to preserve his contention for our review by
objecting 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 defendant’s contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). We
conclude that the court erred in imposing an enhanced sentence because
it “did not advise defendant that a harsher sentence than he bargained
for could be imposed if [he] failed to appear at sentencing” (People v
Ortiz, 244 AD2d 960, 961; see Sundown, 305 AD2d at 1076).

     We therefore modify the judgment by vacating the sentence, and we
remit the matter to Allegany County Court to impose the promised
sentence or to afford defendant the opportunity to withdraw his plea
(see Fortner, 23 AD3d at 1058). In light of our determination, we do
not address defendant’s remaining contentions.
Entered: June 12, 2015                          Frances E. Cafarell
                                                Clerk of the Court
