PEOPLE v. MELENDEZ

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the amount of restitution ordered and as modified the judgment is affirmed and the matter is remitted to Supreme Court for further proceedings in accordance with the following Memorandum:

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39). Defendant's waiver of the right to appeal as part of the plea agreement encompasses the challenge to the severity of the enhanced sentence ultimately imposed ( see, People v. Milczakowskyj, 286 A.D.2d 928; People v. Miles, 268 A.D.2d 489, lv denied 95 N.Y.2d 800). Upon defendant's violation of the sentencing conditions, Supreme Court was free to impose the full range of penalties, including restitution ( see, People v. Thompson, 221 A.D.2d 1016, lv denied 87 N.Y.2d 977; People v. Parsons, 210 A.D.2d 901, lv denied 85 N.Y.2d 941).

Defendant did not, however, agree to the amount of restitution or otherwise waive his right to a hearing ( see, People v. Young, 281 A.D.2d 950, 951, lv denied 96 N.Y.2d 909; People v. Guise, 278 A.D.2d 831, 832; People v. Dibble [appeal No. 2], 277 A.D.2d 969, 970). Moreover, the presentence report and unsworn victim impact statement constitute an insufficient basis for the court's finding with respect to the amount of restitution ordered ( see, People v. Wright, 288 A.D.2d 899 [decided Nov. 9, 2001]; People v. Young, supra, at 951; People v. Oehler, 278 A.D.2d 807, 808; People v. White, 266 A.D.2d 831, 832). We therefore modify the judgment by vacating the amount of restitution ordered, and we remit the matter to Supreme Court for a hearing to determine the amount of restitution.