61 A.D.3d 705
N.Y. App. Div.
2009

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v FRANCISCO ORTEGA, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department

875 N.Y.S.2d 909

Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.), rendered August 28, 2007, convicting him of robbery in the first degree, robbery in the second degree (two counts), burglary in the first degree (two counts), and menacing in the third degree, upon his plea of guilty, and imposing sentence.

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.