SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

11 

KA 10-02351 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

BRENDAN J. RHODES, DEFENDANT-APPELLANT. 

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

KEITH A. SLEP, DISTRICT ATTORNEY, BELMONT, FOR RESPONDENT. 

 

Appeal from a judgment of the Allegany County Court (Thomas P.

Brown, J.), rendered July 19, 2010. The judgment convicted defendant,

upon his plea of guilty, of robbery in the first degree. 

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 Allegany County

Court for further proceedings in accordance with the following

Memorandum: Defendant appeals from a judgment convicting him, upon

his plea of guilty, of robbery in the first degree (Penal Law § 160.15

[4]). By failing to move to withdraw the plea or to vacate the

judgment of conviction, defendant failed to preserve for our review

his contention that his plea was not knowingly, voluntarily and

intelligently entered (see People v Diaz, 62 AD3d 1252, lv denied 12

NY3d 924), as well as his challenge to the factual sufficiency of the

plea allocution (see People v Lopez, 71 NY2d 662, 665; People v

Dowdell, 35 AD3d 1278, 1279, lv denied 8 NY3d 921). This case does

not fall within the rare exception to the preservation requirement

inasmuch as the plea allocution does not “cast[] significant doubt

upon the defendant’s guilt or otherwise call[] into question the

voluntariness of the plea” (Lopez, 71 NY2d at 666, see People v Neal,

56 AD3d 1211, lv denied 12 NY3d 761).

By failing to object to the imposition of restitution at

sentencing, which was not a part of the plea agreement, defendant

failed to preserve for our review his contention that County Court

erred in enhancing the sentence by imposing restitution at sentencing

without affording him the opportunity to withdraw the plea (see People

v Delair, 6 AD3d 1152). We nevertheless exercise our power to review

that contention as a matter of discretion in the interest of justice

(see CPL 470.15 [6] [a]), and we conclude that, because restitution

was not part of the plea agreement, the court should have afforded
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KA 10-02351 

defendant the opportunity to withdraw his plea before ordering him to

pay restitution (see People v Therrien, 12 AD3d 1045, 1046). In

addition, defendant failed to preserve for our review his contention

that the record is insufficient to support the amount of restitution

ordered (see generally People v Cooke, 21 AD3d 1339). We further

exercise our power to review that contention as a matter of discretion

in the interest of justice, however, and we conclude that the court

erred in failing to conduct a hearing to determine the amount of

restitution (see id.). We therefore modify the judgment by vacating

the sentence, and we remit the matter to County Court to impose the

promised sentence or to afford defendant the opportunity to withdraw

his plea.

Entered: January 31, 2012 Frances E. Cafarell

Clerk of the Court