People v. Ortega

Apr 7, 2009
Reporters:
,

Ordered that the judgment is modified, on the law, the sentence is vacated, and the matter is remitted to the County Court, Nassau County, for further proceedings consistent herewith.

Although a court is free to reserve the right to order restitution as part of a plea bargain, the plea minutes in this case do not indicate that the plea of guilty was negotiated with terms that included restitution (see People v Kegel, 55 AD3d 625 [2008]; People v Henderson, 44 AD3d 873 [2007]). Accordingly, at sentencing, the defendant should have been given an opportunity either to withdraw his plea or to accept the enhanced sentence that included both restitution and a prison sentence (see People v Kegel, 55 AD3d 625 [2008]; People v Henderson, 44 AD3d 873 [2007]). Since the defendant was not afforded this opportunity, the matter must be remitted to the County Court, Nassau County, for that purpose, or for the imposition of the agreed-upon sentence. Rivera, J.P., Dillon, Miller, Balkin and Leventhal, JJ., concur.