State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 107261 

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107263

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

THOMAS NESBITT,

Appellant.

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Calendar Date: October 21, 2016

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

__________

Lisa A. Burgess, Indian Lake, for appellant.

Craig P. Carriero, District Attorney, Malone (Jennifer M.

Hollis of counsel), for respondent.

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Clark, J.

Appeal from a judgment of the County Court of Franklin

County (Main Jr., J.), rendered December 1, 2014, convicting

defendant upon his plea of guilty of the crimes of criminal

possession of a controlled substance in the third degree,

criminal sale of a controlled substance in the third degree and

criminal contempt in the second degree.

Defendant pleaded guilty to criminal possession of a

controlled substance in the third degree, criminal sale of a

controlled substance in the third degree and criminal contempt in

the second degree in full satisfaction of four accusatory

instruments, including indictment Nos. I-83-2014 and I-80-2014,
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and waived his right to appeal. County Court thereafter

sentenced defendant, as a second felony offender, to consecutive

sentences of three years in prison, to be followed by three years

of postrelease supervision, on the criminal possession of a

controlled substance and criminal sale of a controlled substance

convictions, and ordered restitution in the amount of $300 for

each conviction. The court also sentenced defendant to one year

in jail for the criminal contempt conviction. Defendant now

appeals.

Defendant contends that, by imposing the one-year sentence

on the criminal contempt conviction, County Court improperly

enhanced his sentence without offering him an opportunity to

withdraw his plea. While this issue survives his appeal waiver,

it is unpreserved for our review due to his failure to object on

this ground at sentencing or move to withdraw his plea on this

basis (see People v Raleigh, 121 AD3d 1412, 1413 [2014]; People v

DePalma, 99 AD3d 1116, 1116-1117 [2012], lv denied 20 NY3d 1010

[2013]). 

Defendant also contends that County Court improperly

ordered $300 in restitution on his conviction for criminal

possession of a controlled substance in the third degree under

indictment No. I-80-2014.1 Pursuant to the plea agreement, the

People requested and defendant agreed to pay $300 in restitution

on his conviction for criminal sale of a controlled substance in

satisfaction of indictment No. I-83-2014, which represented funds

used in a controlled buy. Although there was no similar

agreement regarding the guilty plea to the criminal possession

1 Defendant was charged in indictment No. I-80-2014 with

criminal possession of a controlled substance in the third

degree, criminal possession of a controlled substance in the

fourth degree and speeding in violation of the Vehicle and

Traffic Law. He was charged in indictment No. I-83-2014 with two

counts of criminal sale of a controlled substance in the third

degree and two counts of criminal possession of a controlled

substance in the third degree.
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charge in satisfaction of indictment No. I-80-2014, the People

requested the restitution at sentencing, without offering any

evidence in support of restitution under this charge. Although

defendant's challenge to the restitution ordered for the criminal

possession conviction is unpreserved due to his failure to

request a hearing or object at the time of sentencing (see

People v Vasavada, 93 AD3d 893, 894 [2012], lv denied 19 NY3d 978

[2012]; People v Drayton, 79 AD3d 1529, 1530 [2010]), we find it

appropriate to exercise our interest of justice jurisdiction. 

Accordingly, the judgment is modified by reversing the sentence

only insofar as it directs defendant to pay restitution in the

amount of $300 pursuant to his conviction under indictment No.

I-80-2014 and remit the matter for the sole purpose of a

restitution hearing or a redetermination of restitution (see

People v Morehouse, 140 AD3d 1202, 1204 [2016], lv denied 28 NY3d

934 [2016]; People v Lyman, 119 AD3d 968, 970 [2014], lv denied

27 NY3d 1153 [2016]). 

McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur.

ORDERED that the judgment is modified, as a matter of

discretion in the interest of justice, by reversing so much

thereof as ordered restitution in the amount of $300 pursuant to

defendant's conviction under indictment No. I-80-2014; matter

remitted to the County Court of Franklin County for further

proceedings not inconsistent with this Court's decision; and, as

so modified, affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court