People v. Roy K. Nestler
Attorneys and Parties
Brief Summary
Criminal law—plea agreements, enhanced sentencing conditions, and restitution in attorney theft from an estate.
County Court imposed an enhanced sentence of 4 to 12 years after the defendant failed to make restitution prior to sentencing.
The enhanced 4-to-12-year sentence exceeding the negotiated 2-to-6-year term.
Failure to pay restitution before sentencing was not an explicit, warned-of plea condition authorizing enhancement; the court gave no advance notice it was considering enhancement and made no finding of a violation. Under People v Selikoff and progeny, specific performance was warranted because no new postplea information justified deviating from the bargained-for sentence.
Background
Defendant, an attorney who stole approximately $512,000 from an estate he represented, waived indictment and on May 23, 2023 pleaded guilty by superior court information (SCI) to grand larceny in the second degree with an appeal waiver. The court rejected the People's offer (plea to grand larceny in the third degree with 2–6 years and restitution) but proposed accepting a plea to the higher count with sentencing adjourned one year; if full restitution was made, defendant could withdraw the plea and plead to the reduced charge, with the same sentence and a strong inclination toward including probation. One year later, having paid no restitution, defendant received 4–12 years and a restitution order totaling $540,024.
Lower Court Decision
County Court sentenced defendant to an enhanced prison term of 4 to 12 years and ordered restitution ($514,309 principal plus a 5% surcharge of $25,715, totaling $540,024) payable for the benefit of the estate and the Lawyer's Fund for Client Protection, based on defendant’s failure to pay restitution before sentencing.
Appellate Division Reversal
The court held defendant’s claim survived the appeal waiver and that preservation was not required because the enhancement was pronounced without practical opportunity to object. An enhanced sentence requires violation of explicit, objective plea conditions that were disclosed at the time of the plea with notice of enhancement consequences; restitution payment before sentencing was not such a condition here. Because no new postplea information justified departure, specific performance was ordered: sentence vacated and the negotiated term of 2 to 6 years imposed, with restitution per the May 23, 2024 order.
Legal Significance
Reaffirms that New York courts may not enhance a negotiated sentence absent an expressly stated and accepted plea condition coupled with clear warning of enhancement consequences; otherwise, courts must honor the bargain or offer plea withdrawal. Also clarifies that failure to pay restitution may be a condition for a charge reduction but does not, without explicit agreement and warning, permit enhancement of the agreed sentence. Preservation may be excused when enhancement is imposed without an opportunity to object.
In New York, a sentencing court cannot exceed a negotiated sentence for nonpayment of restitution unless that obligation was an explicit plea condition with clear notice of enhancement; when no new information emerges postplea, specific performance of the agreed sentence is the proper remedy.