You are here: / / DEFENDANT WAS NOT NOTIFIED THAT IF HE FAILED TO PAY RESTITUTION HIS SENTENCE...
, ,

DEFENDANT WAS NOT NOTIFIED THAT IF HE FAILED TO PAY RESTITUTION HIS SENTENCE WOULD BE ENHANCED; ENHANCED SENTENCE VACATED AND AGREED-UPON SENTENCE IMPOSED (THIRD DEPT).

The Third Department, vacating defendant’s enhanced sentence and imposing the agreed-upon sentence, determined defendant was not given notice that his failure to pay restitution would result in an enhanced sentence. The agreed sentence was 2 to 6 years and the enhanced sentence was 4 to 12 years:

Defendant argues that County Court erred in imposing a prison sentence in excess of that promised in the plea agreement and requests that this Court resentence him to the agreed-upon term of 2 to 6 years in prison, without remanding the matter to County Court. Defendant contends that while payment of restitution was contemplated prior to sentencing, County Court never advised him that if he failed to pay restitution by the sentencing date it could impose an enhanced prison sentence. We agree. Defendant’s argument survives his unchallenged appeal waiver … . However, given that the court’s enhanced sentence was pronounced at the very end of the sentencing proceeding, without advance warning that it was considering an enhanced sentence or even a clear finding that defendant had violated an express condition of the plea agreement, we find that he had no practical ability to raise an objection and, thus, preservation was not required … . Under settled law, “the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence, and, conversely, a sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed” … . People v Nestler, 2025 NY Slip Op 05852, Third Dept 10-23-25

Practice Point: Consult this decision for an explanation of the criteria which allow a judge to ignore an agreed-upon sentence and impose an enhanced sentence.​

 

You might also like
THE HOME-BUILDER’S CONTRACT WAS INVALID BECAUSE IT DID NOT COMPLY WITH THE GENERAL BUSINESS LAW, THE HOMEOWNERS’ BREACH OF CONTRACT COUNTERCLAIM SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND HOWEVER; CONTRACTOR ENTITLED TO RECOVER IN QUANTUM MERUIT IF, UPON REMITTAL, IT IS DETERMINED THE CONTRACTOR’S BREACH, IF ANY, WAS NOT SUBSTANTIAL (THIRD DEPT).
Failure to Transcribe Portion of Voir Dire Not Reversible Error—Criteria Explained
Termination of Deputy Sheriff by Sheriff after Hearing Officer Recommended Suspension Upheld
THE COUNTY DID NOT SUBMIT SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPTL 1125 IN THIS PROPERTY TAX FORECLOSURE CASE (THIRD DEPT).
ALTHOUGH DEFECTS IN GUILTY PLEA NOT PRESERVED BY A MOTION, PLEA VACATED IN THE INTEREST OF JUSTICE BECAUSE JUDGE DID NOT ENSURE DEFENDANT UNDERSTOOD THE CONSTITUTIONAL RIGHTS HE WAS GIVING UP.
The Prosecutor’s Summation Was Filled With Impermissible Statements and Suggestions, Requiring Reversal of Defendant’s Conviction
Judge’s Failure to Recuse Himself Was an Abuse of Discretion/Plaintiffs’ Failure to Comply with a Condition Precedent Mandated Summary Judgment to Defendants
ALTHOUGH DEEMED HARMLESS, IT WAS ERROR TO HAVE THE DEFENDANT SHACKLED DURING A PORTION OF THE TRIAL (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE RECORD DID NOT DEMONSTRATE COMPLIANCE WITH THE WAIVER-OF-INDICTMENT PROCEDURE,... IT WAS AN ABUSE OF DISCRETION TO RETURN THE CHILD TO MOTHER DURING THE PENDENCY...