People v. Cowan ( 1990 )

Appeal by the defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered August 4, 1989, convicting him of attempted criminal possession of a weapon in the third degree and attempted criminal possession of stolen property in the fourth degree, upon his plea of guilty, and sentencing him to an indeterminate term of 2 to 4 years’ imprisonment for attempted criminal possession of a weapon in the third degree, to run concurrently to a definite term of one-year imprisonment for attempted criminal possession of stolen property in the fourth degree, and imposed restitution in the amount of $4,456.99.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to County Court, Nassau County, for further proceedings consistent herewith.

We find that the defendant’s plea was knowing and voluntary and that the allocution was factually sufficient (see, People v Lopez, 71 NY2d 662, 666). However, the plea minutes do not indicate that the defendant agreed to the payment of $4,456.99 in restitution as a condition of the sentence. Although a court is, of course, free to reserve the right to order restitution with or without the defendant’s consent, the guilty plea in this case was negotiated on terms that did not include mention of restitution. Accordingly, at sentencing, the defendant should have been given an opportunity either to withdraw his plea or to accept the greater sentence of restitution in addition to a prison sentence (see, People v Lopez, 135 AD2d 739, 739-740). Since he was not afforded this opportunity, we now remit the matter for that purpose. Bracken, J. P., Lawrence, Eiber, Harwood and Rosenblatt, JJ., concur.