People v. Fortner

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered June 6, 2003. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree. It is hereby ordered that the judgment so appealed from be and the same hereby 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 Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]), defendant contends that Supreme Court erred in imposing an enhanced sentence without affording him an opportunity to withdraw his plea. The record establishes that defendant was not informed at the time of the plea that he must return for sentencing in order to avoid the imposition of an enhanced sentence. Contrary to the contention of the People, the waiver by defendant of the right to appeal does not encompass his challenge to the enhanced sentence “because there was no discussion of that issue at the time of the plea” (People v Hendricks, 270 AD2d 944, 944-945 [2000]). Although the People are correct that defendant failed to preserve his contention for our review because he did not object to the enhanced sentence or move to withdraw the plea or vacate the judgment of conviction, we nevertheless exercise our power to review defendant’s contention as a matter of discretion in the interest of justice (see generally People v Cooke, 21 AD3d 1339 [2005]). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court to impose the promised sentence or to afford defendant the opportunity to withdraw his plea (see id.; People v Spina, 186 AD2d 9 [1992]). Present—Pigott, Jr., P.J., Green, Kehoe, Martoche and Pine, JJ.