People
v.
Gregory

Supreme Court, Appellate Division, Second Department, New York.Jun 22, 2016
33 N.Y.S.3d 736 (N.Y. App. Div. 2016)
33 N.Y.S.3d 736140 A.D.3d 1088A.D.3d2016 N.Y. Slip Op. 4960

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06-22-2016

The PEOPLE, etc., respondent, v. Robert B. GREGORY, appellant.

Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), for respondent.


Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Rosalind C. Gray of counsel), for respondent.

Opinion Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.), rendered February 19, 2015, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence which included a fine in the sum of $5,000.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the provision of the sentence imposing a fine in the sum of $5,000; as so modified, the judgment is affirmed. The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). The defendant's valid waiver of the right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Magnotta, 137 A.D.3d 1303, 27 N.Y.S.3d 403 ).

The defendant's waiver of his right to appeal does not preclude appellate review of his contention that the County Court improperly imposed an enhanced sentence (see People v. Muhammad, 47 A.D.3d 951, 952, 851 N.Y.S.2d 601 ). Although the defendant's contention is unpreserved for appellate review (see People v. Carrasquillo, 133 A.D.3d 774, 775, 19 N.Y.S.3d 333 ; People v. Scoca, 38 A.D.3d 801, 832 N.Y.S.2d 604 ), we reach the issue as a matter of discretion in the interest of justice.

The County Court improperly enhanced the defendant's sentence by imposing a fine that was not part of the negotiated plea agreement (see People v. Legette, 131 A.D.3d 546, 547, 14 N.Y.S.3d 697 ; People v. Rossetti, 55 A.D.3d 637, 637, 865 N.Y.S.2d 318 ). The relief the defendant requests in connection with this issue is vacatur of the provision of his sentence imposing the fine. Under the circumstances of this case, we deem it appropriate to vacate the provision of his 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 (see People v. Roberts, 139 A.D.3d 1092, ––––, 30 N.Y.S.3d 829, 2016 N.Y. Slip Op. 04078, *1 [2d Dept 2016]; People v. Sheats, 138 A.D.3d 894, 894–895, 28 N.Y.S.3d 324 ; People v. Nilsen, 129 A.D.3d 994, 995, 11 N.Y.S.3d 255 ).

LEVENTHAL, J.P., MILLER, DUFFY and CONNOLLY, JJ., concur.