MALONE JR.
Theodore J. Stein, Woodstock, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: LAHTINEN, J.P., MALONE JR., STEIN, McCARTHY and GARRY, JJ.
MALONE JR., J.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered August 3, 2010, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree and was sentenced, as a second felony offender, to four years in prison followed by two years of postrelease supervision and ordered to make restitution of $100. On this appeal from the judgment of conviction, defendant first argues that County Court did not advise him at the time of his plea that he would be sentenced as a second felony offender. However, the record before us fails to indicate that defendant preserved this claim by moving to either withdraw the plea or vacate the judgment of conviction ( see People v. Mayers, 74 N.Y.2d 931, 932, 550 N.Y.S.2d 266, 549 N.E.2d 468 [1989];People v. Campbell, 66 A.D.3d 1059, 1059–1060, 886 N.Y.S.2d 242 [2009] ). Nor did he preserve by timely objection his further contention that the court failed to comply with the requirements of CPL 400.21 ( see People v. Washington, 89 A.D.3d 1140, 1142, 931 N.Y.S.2d 787 [2011],lv. denied18 N.Y.3d 963, 944 N.Y.S.2d 492, 967 N.E.2d 717 [2012];People v. Califano, 84 A.D.3d 1504, 1506–1507, 923 N.Y.S.2d 299 [2011],lv. denied17 N.Y.3d 805, 929 N.Y.S.2d 564, 953 N.E.2d 802 [2011] ). However, the People concede that restitution was not a part of the plea agreement. Accordingly, the sentence must be vacated and the matter remitted to County Court to either impose the agreed-upon sentence or give defendant the opportunity to withdraw his plea before imposing the enhanced sentence ( see People v. Galietta, 75 A.D.3d 753, 754–755, 904 N.Y.S.2d 804 [2010];People v. Gantt, 63 A.D.3d 1379, 1379–1380, 881 N.Y.S.2d 224 [2009] ).
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; matter remitted to the County Court of Ulster County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed. LAHTINEN, J.P., STEIN, McCARTHY and GARRY, JJ., concur.