| People v Dickson |
| 2008 NY Slip Op 08202 [55 AD3d 1137] |
| October 30, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Patrick DicksonJr., Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), renderedMarch 23, 2006, convicting defendant upon his plea of guilty of the crimes of arson in the seconddegree, arson in the third degree (three counts), reckless endangerment in the first degree, burglary inthe third degree and criminal mischief in the second degree (four counts).
Defendant, formerly a volunteer firefighter, was charged in a 10-count indictment with arson in thesecond degree, arson in the third degree (three counts), reckless endangerment in the first degree,burglary in the third degree and criminal mischief in the second degree (four counts) stemming fromincidents wherein defendant set fire to four structures in Ulster County between May 2005 and July2005. Defendant ultimately pleaded guilty to all counts and was sentenced to concurrent prison terms of10 years for arson in the second degree, followed by five years of postrelease supervision, and 2 to 6years on each of the remaining counts. Additionally, defendant was ordered to pay restitution.Defendant now appeals, contending that the sentence imposed was harsh and excessive and thatCounty Court erred in ordering restitution without conducting a hearing.
With regard to sentencing, County Court imposed the agreed-upon sentence and our review of therecord fails to disclose either an abuse of discretion or the existence of extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see [*2]People v Ensley, 53 AD3d 929,930 [2008]). Contrary to defendant's assertion, his personal difficulties and remorse were welldocumented in the presentence investigation report.
As to the issue of restitution, the People correctly note that where a defendant is apprised of thesum to be awarded and fails to contest that amount at sentencing or request a hearing, any challenge tothe actual amount of restitution is unpreserved for our review (see People v Stephens, 51 AD3d 1225 [2008]; People v Golgoski, 40 AD3d 1138[2007]; People v Snyder, 38 AD3d1068, 1069 [2007]). Here, however, the total amount of restitution to be awarded was notresolved prior to sentencing (compare People v Stephens, 51 AD3d at1225-1226).[FN*]Moreover, the uniform sentence and commitment order is silent as to the amount of restitution ordered,and no order of restitution appears in the record on appeal; indeed, this Court has been advised that nosuch order exists. Under these circumstances, defendant cannot be said to have waived any objectionin this regard (compare People v Milazo,33 AD3d 1060, 1061 [2006], lv denied 8 NY3d 883 [2007]) and, plainly, this Courtcannot review the propriety of such an award when the actual amount of restitution ordered isunknown. Accordingly, this matter must be remitted to County Court for a restitution hearing.
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by reversing so much thereof as ordered defendant to pay restitution; matter remitted to theCounty Court of Ulster County for a hearing on restitution; and, as so modified, affirmed.
Footnote *: The People submitteddocumentation from two insurance companies showing payments to their insureds totaling$122,375.52. One of the insureds, however, appeared at sentencing and requested an additional$12,695. Although County Court expressed a willingness to increase the amount of restitution by thatsum, it was unclear whether all or part of the additional money requested was covered by the priorinsurance settlement paid to that individual. Accordingly, County Court indicated that the relevantinsurance company would have to provide a breakdown of the payout, at which point the court and theprosecutor would revisit the issue. No resolution of that discussion/issue appears in the record.