People v. Branch-El, 12 A.D.3d 785 (N.Y. App. Div. 2004). · Go Syfert
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People v. Branch-El, 12 A.D.3d 785 (N.Y. App. Div. 2004). Cases Citing This Book View Copy Cite
27 citation events (27 in the last 25 years) across 1 distinct court.
Strongest positive: Swinton v. Kamiyama (nyappdiv, 2017-02-01)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) Swinton v. Kamiyama
N.Y. App. Div. · 2017 · confidence medium
Moreover, “[t]here can be more than one proximate cause of an accident” (Cox v Nunez, 23 AD3d 427, 427 [2005]; see Jones v Vialva Duke, 106 AD3d 1052, 1052 [2013]; Lopez v Reyes-Flores, 12 AD3d 785, 786 [2008]).
discussed Cited as authority (rule) People v. Brasmeister
N.Y. App. Div. · 2016 · confidence medium
As to defendant’s challenge to the imposition of restitution, this issue survives his appeal waiver (see People v Nugent, 31 AD3d 976 , 978 [2006], lv denied 8 NY3d 925 [2007]; People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]).
discussed Cited as authority (rule) People v. Brasmeister
N.Y. App. Div. · 2016 · confidence medium
As to defendant’s challenge to the imposition of restitution, this issue survives his appeal waiver (see People v Nugent, 31 AD3d 976 , 978 [2006], lv denied 8 NY3d 925 [2007]; People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]).
discussed Cited as authority (rule) People v. Brandon
N.Y. App. Div. · 2015 · confidence medium
That the court required the payment of $500 in restitution (based on the funds used in the two controlled buys), which is separate and distinct from a fine (see Penal Law §§ 60.05 [7]; 60.27), does not provide a basis for defendant to withdraw his plea (compare People v McCarthy, 56 AD3d 904 , 905 [2008]; People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]; People v Toms, 293 AD2d 768, 769 [2002]).
discussed Cited as authority (rule) People v. Strong
N.Y. App. Div. · 2015 · confidence medium
Inasmuch, however, as the record before us does not demon strate that the payment of restitution was part of defendant’s plea bargain, County Court should not have imposed the enhanced sentence without first giving defendant an opportunity to withdraw his plea (see People v Culcleasure, 75 AD3d 832, 832 [2010]; People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]). 2 Accordingly, the sentence must be vacated and the matter remitted to County Court for that purpose or, alternatively, the imposition of the promised sentence (see People v Culcleasure, 75 AD3d at 833 ; People…
discussed Cited as authority (rule) People v. Strong
N.Y. App. Div. · 2015 · confidence medium
Inasmuch, however, as the record before us does not demon strate that the payment of restitution was part of defendant’s plea bargain, County Court should not have imposed the enhanced sentence without first giving defendant an opportunity to withdraw his plea (see People v Culcleasure, 75 AD3d 832, 832 [2010]; People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]). 2 Accordingly, the sentence must be vacated and the matter remitted to County Court for that purpose or, alternatively, the imposition of the promised sentence (see People v Culcleasure, 75 AD3d at 833 ; People…
discussed Cited as authority (rule) People v. Hullet
N.Y. App. Div. · 2014 · confidence medium
The People correctly concede that, because the plea agreement did not mention restitution, defendant should have been given the opportunity to either withdraw his plea or accept the enhanced sentence (see People v Harden, 99 AD3d 1108, 1109 [2012]; People v Galietta, 75 AD3d 753, 754-755 [2010]; People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]).
discussed Cited as authority (rule) People v. Hullet
N.Y. App. Div. · 2014 · confidence medium
The People correctly concede that, because the plea agreement did not mention restitution, defendant should have been given the opportunity to either withdraw his plea or accept the enhanced sentence (see People v Harden, 99 AD3d 1108, 1109 [2012]; People v Galietta, 75 AD3d 753, 754-755 [2010]; People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]).
discussed Cited as authority (rule) People v. Naumowicz
N.Y. App. Div. · 2010 · confidence medium
Remittal remains the suitable remedy despite defendant’s consent to the issuance of the additional restitution orders; nothing in the record indicates that she was given any option to do otherwise (see People v McDowell, 56 AD3d 955 , 956 [2008]; People u Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]).
discussed Cited as authority (rule) People v. Culcleasure
N.Y. App. Div. · 2010 · confidence medium
Preliminarily, we note that neither defendant’s appeal waiver (see People v Gordon, 53 AD3d 793, 794 [2008]; People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]) nor his failure to preserve this issue through an objection at sentencing (see People v Snyder, 23 AD3d 761, 763 [2005]) is fatal to the claim.
discussed Cited as authority (rule) People v. Scott
N.Y. App. Div. · 2010 · confidence medium
While we agree with defendant that the issue is properly before us and not encompassed by his appeal waiver, we nevertheless affirm (see People v McNulty, 70 AD3d 1127, 1128 [2010]; People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]).
discussed Cited as authority (rule) People v. McDowell
N.Y. App. Div. · 2008 · confidence medium
Here, the plea agreement was not committed to writing and the record contains no other indication that restitution was made part of the plea agreement (see People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]; People v Harrington, 3 AD3d at 738 ).
discussed Cited as authority (rule) People v. McCarthy
N.Y. App. Div. · 2008 · confidence medium
Therefore, before County Court imposed the enhanced sentence, it should have afforded defendant the opportunity to first withdraw her plea or accept the enhanced sentence (see People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]; People v Toms, 293 AD2d 768 [2002]).
discussed Cited as authority (rule) People v. Ponder
N.Y. App. Div. · 2007 · confidence medium
The fact that, at sentencing, defendant agreed to pay restitution is of no moment inasmuch as the court “never gave defendant any option to do otherwise” (People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]).
discussed Cited as authority (rule) People v. Nugent
N.Y. App. Div. · 2006 · confidence medium
However, despite the waiver of appeal, defendant’s challenge to the imposition of restitution is properly before us (see People v Branch-El [Branch] [Dre], 12 AD3d 785, 786 [2004], lvs denied 4 NY3d 761 , 763 [2005]), and we find merit in that challenge.
discussed Cited as authority (rule) People v. Snyder (2×) also: Cited "see"
N.Y. App. Div. · 2005 · confidence medium
Contrary to the People’s assertion, defendant’s failure to preserve this issue by objecting at sentencing is not fatal to his claim (see People v Branch-El, supra at 786; compare People v Sartori, 8 AD3d 748, 749 [2004]).
discussed Cited as authority (rule) People v. Schwickrath (2×)
N.Y. App. Div. · 2005 · confidence medium
Where, as here, the payment of restitution was not included in the plea agreement and defendant was not advised of the possibility that restitution would be imposed, defendant must be given the opportunity to withdraw his plea or accept the enhanced sentence (see People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]; People v Harrington, 3 AD3d 737, 738-739 [2004]; People v Neu, 1 AD3d 798, 798-799 [2003]).
discussed Cited as authority (rule) People v. Haslow
N.Y. App. Div. · 2005 · confidence medium
As a threshold matter, while waivers of appeal are generally enforceable (see People v Hidalgo, 91 NY2d 733, 735 [1998]), we note that defendant’s challenge to County Court’s failure to abide by the original plea bargain is properly before us since defendant’s waiver was predicated upon the imposition of the agreed-upon sentence and should not be enforced where certain conditions or terms were never clearly set forth at the plea proceeding (see People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]; People v Covell, 276 AD2d 824, 826 [2000]; but see People v Holmes, 306…
discussed Cited as authority (rule) People v. Bonet
N.Y. App. Div. · 2005 · confidence medium
While defendant’s waiver of the right to appeal does not by itself preclude this Court’s review of the voluntariness of his plea, by failing to move either to withdraw his plea or to vacate the judgment of conviction defendant has failed to preserve the issue for our review (see People v Branch-El, 12 AD3d 785, 786 [2004]).
discussed Cited "see" People v. Hastings
N.Y. App. Div. · 2005 · signal: see · confidence high
Initially, we note that while waivers of appeal are generally enforceable, defendant’s waiver does not preclude her challenge here inasmuch as it “was predicated upon the imposition of the agreed-upon sentence and should not be enforced where certain conditions or terms were never clearly set forth at the plea proceeding” (People v Haslow, 20 AD3d 680, 680-681 [2005], lv denied 5 NY3d 828 [2005]; see People v Branch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Andre Branch-El, Also Known as Andre Branch, Also Known as Dre
Appellate Division of the Supreme Court of the State of New York.
Nov 10, 2004.
12 A.D.3d 785
Mugglin.
Cited by 21 opinions  |  Published
Mugglin, J.

Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered November 6, 2002, convicting defendant upon his plea of guilty of the crime of murder in the second degree.

[*786] In satisfaction of a six-count indictment, defendant pleaded guilty to murder in the second degree and was thereafter sentenced to a prison term of 20 years to life. At sentencing, following a bench conference with counsel, County Court also ordered defendant to pay restitution in the amount of $2,000 to cover the cost of the victim’s funeral expenses. Defendant now appeals.

Defendant contends that while his plea allocution satisfied the elements of the crime of manslaughter in the second degree, it was insufficient to satisfy all of the elements of the crime of murder in the second degree. Initially, having failed to move to withdraw his plea or vacate the judgment of conviction, defendant is precluded from challenging the factual sufficiency of the plea (see People v MacCue, 8 AD3d 910, 911 [2004], lv denied 3 NY3d 708 [2004]; People v Smith, 2 AD3d 1057, 1058 [2003], lv denied 2 NY3d 746 [2004]) and, as “ ‘significant doubt upon . . . defendant’s guilt’ ” does not exist, the narrow exception to the preservation rule is not applicable here (People v Meyer, 1 AD3d 636, 637 [2003], quoting People v Lopez, 71 NY2d 662, 666 [1988]). In any event, defendant’s responses to County Court’s questions established the reckless element of murder in the second degree (see People v MacCue, supra at 911; People v Smith, supra at 1058).

With respect to defendant’s challenge to the payment of restitution, we note that, despite defendant’s waiver of appeal, the propriety of the restitution order is properly before us since the “waiver clearly was predicated upon the imposition of the agreed-upon sentence and should not be enforced where the sentence imposed is contrary to such agreement” (People v Nichols, 276 AD2d 832 [2000]). Turning to the merits, since the plea agreement did not mention restitution, County Court should have given defendant the opportunity at sentencing to either withdraw his plea or accept the enhanced sentence (see People v Harrington, 3 AD3d 737, 738 [2004]; People v Neu, 1 AD3d 798, 798 [2003]). Although defendant agreed to the payment of restitution here, County Court never gave defendant any option to do otherwise; this matter must therefore be remitted to County Court for that purpose (see People v Neu, supra at 799; People v Toms, 293 AD2d 768, 769 [2002]).

Mercure, J.P., Crew III, Rose 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 Schenectady County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.