From Casetext: Smarter Legal Research

People v. Fortner

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 10, 2005
803 N.Y.S.2d 470 (N.Y. App. Div. 2005)

Opinion

KA 03-01478.

November 10, 2005.

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered June 6, 2003. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Present: Pigott, Jr., P.J., Green, Kehoe, Martoche and Pine, JJ.


It is hereby ordered that the judgment so appealed from be and the same hereby 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 Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06), defendant contends that Supreme Court erred in imposing an enhanced sentence without affording him an opportunity to withdraw his plea. The record establishes that defendant was not informed at the time of the plea that he must return for sentencing in order to avoid the imposition of an enhanced sentence. Contrary to the contention of the People, the waiver by defendant of the right to appeal does not encompass his challenge to the enhanced sentence "because there was no discussion of that issue at the time of the plea" ( People v. Hendricks, 270 AD2d 944, 944-945). Although the People are correct that defendant failed to preserve his contention for our review because he did not object to the enhanced sentence or move to withdraw the plea or vacate the judgment of conviction, we nevertheless exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( see generally People v. Cooke, 21 AD3d 1339). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court to impose the promised sentence or to afford defendant the opportunity to withdraw his plea ( see id.; People v. Spina, 186 AD2d 9).


Summaries of

People v. Fortner

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 10, 2005
803 N.Y.S.2d 470 (N.Y. App. Div. 2005)
Case details for

People v. Fortner

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANDRE FORTNER…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 10, 2005

Citations

803 N.Y.S.2d 470 (N.Y. App. Div. 2005)
23 A.D.3d 1058
2005 N.Y. Slip Op. 8436

Citing Cases

The People v. Alexander Vaillant

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of stolen…

People v. Wilson

because (1) he failed to appear on the August 12, 2013 scheduled court date, resulting in the issuance of a…