The People of the State of New York, Respondent, v. Odell Allen, Appellant

The People of the State of New York, Respondent, v Odell Allen, Appellant. [MAJORITY] Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Nassau County (Boklan, J.), imposed January 11, 1988, upon his conviction of robbery in the first degree, upon his plea of guilty, the sentence being an indeterminate term of imprisonment of 5 to 15 years and restitution in the sum of $2,189.68. Ordered that the sentence is modified, as a matter of discretion in the interest of justice, by vacating the provision directing the defendant to make restitution in the amount of $2,189.68 and substituting therefor a provision directing the defendant to pay a $100 felony surcharge pursuant to Penal Law § 60.35; and as so modified, the sentence is affirmed. At the court appearance during which the defendant and his attorney negotiated the terms of the disposition of the case, the County Court indicated, in relevant part, that upon acceptance of the defendant’s guilty plea, it would impose an indeterminate term of imprisonment of 5 to 15 years and a mandatory surcharge of $100 for the felony conviction. In addition, the People specifically indicated that no restitution would be sought with regard to any of the charges encompassed by the defendant’s plea agreement. However, at sentencing, the County Court was incorrectly informed by defense counsel that restitution had been agreed to by the parties, which misstatement was not corrected by the prosecutor. Accordingly, the sentence has been modified to conform to the parties’ agreement made at the time of the acceptance of the defendant’s guilty plea. Mangano, P. J., Kunzeman, Lawrence, Harwood and Miller, JJ., concur.