No. KA 05-02712.
June 6, 2008.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), rendered June 27, 2005. The judgment convicted defendant, upon his plea of guilty, of forgery in the second degree (two counts).
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR RESPONDENT.
Present: Martoche, J.P., Centra, Lunn, Peradotto and Green, JJ.
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 Monroe County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon his plea of guilty of two counts of forgery in the second degree (Penal Law § 170.10), defendant contends that County Court abused its discretion in imposing an enhanced sentence based on his arrest prior to sentencing. We agree. Although defendant failed to preserve his contention for our review ( see CPL 470.05), we nevertheless exercise our power to review it as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). The record establishes that the court advised defendant at the time of the plea that an enhanced sentence could be imposed if he failed to appear at sentencing, but the court did not advise him at the time of the plea that an enhanced sentence could be imposed in the event that defendant was arrested prior to sentencing. Despite his arrest prior to sentencing, defendant appeared at sentencing. The court therefore was required to afford defendant the opportunity to withdraw his plea before imposing an enhanced sentence based on that arrest ( see People v Walker, 45 AD3d 1401; People v Fortner, 23 AD3d 1058). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court to impose the sentence promised or to afford defendant the opportunity to withdraw his plea.