| People v Gazivoda |
| 2009 NY Slip Op 09317 [68 AD3d 1346] |
| December 17, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GjonGazivoda, Appellant. |
—[*1] Anna Remet, Kingston, for respondent.
Mercure, J.P. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered July 26, 2007, convicting defendant upon his plea of guilty of the crime of grandlarceny in the second degree.
Defendant was charged in an indictment with grand larceny in the second degree forviolating Lien Law § 79-a (1) (b) by misappropriating trust funds. Specifically, defendant,through his business, Construx Development Corporation, accepted approximately $597,000from two property owners in connection with contracts for the improvement of the owners' realproperty. Minimal work was performed on the property and, when the owners demanded thatConstrux refund their money, it failed to do so.
Defendant subsequently pleaded guilty to the crime charged. During the plea colloquy,defense counsel indicated that defendant was aware that he would be ordered to pay restitutionand that the presentence investigation report (hereinafter PSI) would set forth the specific figure.Counsel expressly reserved defendant's right to request a hearing on restitution if defendant didnot agree with the figure set forth in the PSI. We note that the PSI does not, in fact, specify afigure; rather, the People requested at sentencing that defendant be ordered to pay restitution inthe amount of $525,000. Both defense counsel and defendant then requested a hearing on the[*2]matter, with defendant strenuously objecting to the accuracyof the figure.[FN*]Nevertheless, County Court ordered that defendant pay the full amount of restitution requestedby the People, without holding a hearing. The court then sentenced defendant to the agreed-uponterm of 5 to 15 years in prison. Defendant appeals and we now modify and remit for a hearing onrestitution.
Pursuant to statute, a restitution hearing is required "[i]f the record does not containsufficient evidence to support [a] finding" of the actual out-of-pocket loss to the victim "orupon request by defendant" (Penal Law § 60.27 [2] [emphasis added]; see People v Tzitzikalakis, 8 NY3d217, 221 [2007]; People v Peters, 299 AD2d 663, 664 [2002]). Thus, when adefendant so requests, "the court [is] required to grant a hearing pursuant to Penal Law §60.27 (2) irrespective of the level of evidence in the record and to provide defendant with areasonable opportunity to contest the People's evidence or supply evidence on his [or her] ownbehalf" (People v Consalvo, 89 NY2d 140, 146 [1996]; see People v Spry, 214AD2d 771 [1995]). Here, although defendant unequivocally and repeatedly demanded a hearingon restitution, no hearing was held. Accordingly, remittal is required for a hearing on the amountof restitution, at which the People will bear the burden of proving "both components of therestitution equation, the amount taken minus the benefit conferred" (People vTzitzikalakis, 8 NY3d at 221-222; see People v Consalvo, 89 NY2d at 146;People v Spry, 214 AD2d at 771).
Defendant's remaining arguments require little discussion. There is no support in the recordfor defendant's assertion that County Court coerced him into abandoning his request to withdrawhis plea (see People v Morelli, 46AD3d 1215, 1216 [2007], lv denied 10 NY3d 814 [2008]). Furthermore, inasmuchas defendant " 'receive[d] an advantageous plea and nothing in the record casts doubt on theapparent effectiveness of counsel' " (People v Singletary, 51 AD3d 1334, 1335 [2008], lvdenied 11 NY3d 741 [2008], quoting People v Ford, 86 NY2d 397, 404 [1995]), hiscontention that he was denied the effective assistance of counsel lacks merit. Finally, we rejectdefendant's argument that his sentence—which was imposed in accordance with the pleaagreement—was harsh and excessive, particularly given his criminal history and the factthat the sentence runs concurrently to those imposed for similar, but unrelated, crimes in otherjurisdictions.
Kavanagh, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is modified,on the law, by reversing so much thereof as ordered restitution; matter remitted to the CountyCourt of Ulster County for further proceedings not inconsistent with this Court's decision; and,as so modified, affirmed.
Footnote *: Contrary to the People'sassertion, defendant did not waive his objection to the amount of restitution ordered oracknowledge that amount as correct at sentencing. In fact, he repeatedly contested the amount,requested "a full-blown restitution hearing in this matter," indicated his desire to "personallycross-examine" the People's witnesses at the hearing, and declared that he would pay the fullamount of restitution ultimately ordered "[o]ver [his] dead body." Under these circumstances, itcannot be said that defendant failed to request a hearing or consented to the amount of restitutionordered, as the People contend.