People v. Henderson

Oct 16, 2007
Versions:44 A.D.3d 873
843 N.Y.S.2d 678

Ordered that the judgment is modified, on the law, by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for further proceedings consistent herewith.

Although a court is, of course, free to reserve in a plea bargain the right to order restitution, the guilty plea in this case was negotiated with terms that did not include restitution. Accordingly, at sentencing, the defendant should have been given an opportunity either to withdraw his plea or to accept the enhanced sentence of restitution and a prison sentence (see People v Cisco, 208 AD2d 643 [1994]; People v Cowan, 168 AD2d 509 [1990]; People v Lopez, 135 AD2d 739, 739-740 [1987]). Since he was not afforded this opportunity, the matter is now remitted for that purpose. Crane, J.P., Ritter, Fisher, Covello and Dickerson, JJ., concur.