People v. Snow

• Decision Date: 12 November 2010
• Citation: 911 N.Y.S.2d 544,78 A.D.3d 1618
• Parties: The PEOPLE of the State of New York, Respondent, v. Bernard L. SNOW, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 544

78 A.D.3d 1618

The PEOPLE of the State of New York, Respondent,

v.Bernard L. SNOW, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 12, 2010.

Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant-Appellant.

Michael C. Green, District Attorney, Rochester (Elizabeth Clifford of Counsel), for Respondent.

PRESENT: MARTOCHE, J.P., CENTRA, CARNI, LINDLEY, AND PINE, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of three counts of robbery in the third degree (Penal Law § 160.05), two counts of petit larceny (§ 155.25), and one count of grand larceny in the fourth degree (§ 155.30[1] ). Defendant contends that his plea was not knowing, voluntary, or intelligent because Supreme Court failed to inform him at the time of the plea proceeding that he would have to pay restitution. Defendant failed to preserve his contention for our review but, as the People correctly concede, there was no discussion of restitution on the record during the plea proceeding. The People thus contend that defendant "compellingly" argues that restitution was not part of the bargained-for sentence. We agree with the People's further contention, however, that any error in imposing restitution at the original sentencing was remedied when the court did not impose restitution at defendant's resentencing ( see People v. Williams, 14 N.Y.3d 198, 217, 899 N.Y.S.2d 76, 925 N.E.2d 878, cert. denied --- U.S. ----, 131 S.Ct. 125, --- L.Ed.2d ----; see also People v. Minaya, 54 N.Y.2d 360, 363-364, 445 N.Y.S.2d 690, 429 N.E.2d 1161, cert. denied 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144).

Although not addressed by defendant or the People, we note that the court, following the resentencing, issued an order imposing restitution. "Because there is no basis in the record for the restitution amount contained in the ... order of restitution," we modify the judgment by vacating that order ( see People v. Nagel, 60 A.D.3d 1485, 876 N.Y.S.2d 590, lv. denied 12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080).

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the order of restitution dated October 23, 2007 and as modified the judgment is affirmed.