People v. Tehonica

Kane, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered September 5, 2006, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree. Defendant was charged with assault in the second degree and criminal possession of a weapon in the third degree in connection with a bar fight where he struck an individual with a pool cue. During the charge conference following the conclusion of the proof at trial, County Court denied defendant’s request for a justification charge. Defendant then pleaded guilty to attempted criminal possession of a weapon in the third degree in exchange for a prison sentence of IV2 to 3 years, with a recommendation of shock incarceration. The court imposed that sentence, but also ordered defendant to pay $10,889.40 in restitution. Defendant appeals. By pleading guilty, defendant waived his right to challenge County Court’s ruling on his request for a justification charge (see People v Hansen, 95 NY2d 227, 230-231 [2000]; People v Thompson, 287 AD2d 794, 796 [2001], lv denied 97 NY2d 688 [2001]). This issue, which concerns an evidentiary ruling not a jurisdictional or constitutional matter, does not survive defendant’s guilty plea (see People v Hansen, 95 NY2d at 230-231). The People concede that restitution was not part of the plea agreement. Consequently, defendant should have been given the opportunity to either withdraw his plea or accept the enhanced [943] sentence, which included restitution (see People v Snyder, 23 AD3d 761, 762 [2005]; People v Harrington, 3 AD3d 737, 739 [2004]). We remit for that purpose. If restitution is ordered, a hearing should be held regarding the appropriate amount (see People v Snyder, 23 AD3d at 763). Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.