Opinion
1100 KA 20-00791
01-28-2022
The PEOPLE of the State of New York, Respondent, v. Gary WILSON, Defendant-Appellant.
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT. TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
RYAN JAMES MULDOON, AUBURN, FOR DEFENDANT-APPELLANT.
TODD J. CASELLA, DISTRICT ATTORNEY, PENN YAN (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER 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 fine and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of reckless endangerment in the first degree ( Penal Law § 120.25 ), defendant contends that his waiver of the right to appeal is invalid and that his sentence is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid and therefore does not preclude our review of his challenge to the severity of the sentence (see People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ), we conclude that the sentence is not unduly harsh or severe.
Defendant's further contention that his guilty plea was not knowingly, intelligently, and voluntarily entered is actually a contention that County Court erred in imposing a $1,000 fine that was not part of the negotiated plea agreement without affording him an opportunity to withdraw his plea (see generally People v. Kelly , 126 A.D.3d 1328, 1328, 4 N.Y.S.3d 455 [4th Dept. 2015] ). Although defendant failed to preserve his contention for our review by failing to object to the imposition of the fine or by moving to withdraw his plea or to vacate the judgment of conviction (see id. ), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ; Kelly , 126 A.D.3d at 1328, 4 N.Y.S.3d 455 ). With respect to the merits, as the People correctly concede, the court improperly enhanced defendant's sentence by imposing "a fine that was not part of the negotiated plea agreement" ( People v. Roberts , 139 A.D.3d 1092, 1092, 30 N.Y.S.3d 829 [2d Dept. 2016] ; see People v. Stevens , 186 A.D.3d 1833, 1833, 129 N.Y.S.3d 353 [3d Dept. 2020] ). With respect to the remedy, under the circumstances of this case, we conclude that it is "appropriate to vacate the provision of the defendant's sentence imposing a fine, so as to conform the sentence imposed to the promise made to the defendant in exchange for his plea of guilty" ( Roberts , 139 A.D.3d at 1092, 30 N.Y.S.3d 829 ; see Stevens , 186 A.D.3d at 1833, 129 N.Y.S.3d 353 ). We therefore modify the judgment accordingly.
We have reviewed defendant's remaining contention and conclude that it does not require reversal or further modification of the judgment.