| People v Russo |
| 2009 NY Slip Op 09550 [68 AD3d 1437] |
| December 24, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CarlRusso, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), forrespondent.
Mercure, J.P. Appeal from an order of the County Court of Clinton County (McGill, J.),entered January 12, 2007, which amended the judgment of conviction to specify the amount ofrestitution owed by defendant.
Defendant, a building contractor, was accused of bilking clients out of substantial sums ofmoney and pleaded guilty to one count of grand larceny in the fourth degree in satisfaction of apending indictment. County Court sentenced defendant, as agreed, to a prison term of 1½to 3 years and scheduled a hearing to determine the amount of restitution to be paid to thenumerous victims. Following that hearing, at which defendant disputed some of the restitutionclaims, County Court issued an order setting the amount of restitution at over$110,000.[FN1]Defendant, not [*2]having appealed from the original judgmentof conviction, now appeals from the order entered January 12, 2007.[FN2]
At a hearing to determine the amount of restitution, the People are obliged to prove avictim's out-of-pocket loss by the preponderance of the evidence (see Penal Law §60.27 [2]; CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d 217, 221 [2007]; People vWilson, 59 AD3d 807, 808 [2009]). In determining what that loss is, a court must offset theamount taken by a defendant with the benefit, if any, received by the victim (see People vTzitzikalakis, 8 NY3d at 220; People v Fuller, 57 NY2d 152, 158 [1982]).Defendant's work as a contractor did confer a benefit upon his victims; accordingly, to establisha prima facie restitution amount, "the People must show both components of the restitutionequation, the amount taken minus the benefit conferred" (People v Tzitzikalakis, 8 NY3dat 221-222).
In this case, the great majority of County Court's findings as to the losses incurred by thevictims are amply supported by the hearing testimony and other evidence in the record.However, we must remit for further proceedings with regard to one of the claims for restitution.Carol Frome gave defendant $5,900, the same amount that County Court awarded as restitution.She admitted, however, that defendant's employees had done some work on her property and thatsome materials had been delivered. Frome further stated that $1,900 of the amount givendefendant was to purchase a door that he actually ordered, but she admitted that she had notattempted to pick the door up from the vendor. Given that County Court did not take the value ofthose benefits conferred upon Frome into consideration, remittal is required to determine thecorrect amount of restitution.
Spain, Rose, Kane and Garry, JJ., concur. Ordered that the order is modified, on the law, byreversing so much thereof as made an award of restitution as to Carol Frome; matter remitted tothe County Court of Clinton County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote 1: County Court subsequentlyissued an amended order that corrected the original order's calculation of the total amount ofrestitution owed. Although defendant solely appealed from the original order, dismissal of thisappeal is unnecessary, as the amended order served only to correct an addition error and did notmaterially modify the original order in any way (see Matter of Fullam v Fullam, 39AD3d 897, 897 n [2007], lv denied 9 NY3d 802 [2007]; cf. Peris v Western RegionalOff-Track Betting Corp., 255 AD2d 899, 899 [1998]).
Footnote 2: As a general rule, a defendantmay not appeal from a restitution order in a criminal case (see CPL 450.10; People vSantiago, 63 AD3d 1656 [2009]; People v Fricchione, 43 AD3d 410, 411 [2007];but see People v Knowles, 293 AD2d 770, 771 [2002]). Here, however, County Courtspecified at sentencing that the amount of restitution to be imposed would be set after ascheduled hearing. We accordingly view the appealed-from restitution order as an appealableamendment to the judgment of conviction (see CPL 450.10 [1], [2]; People vSwiatowy, 280 AD2d 71, 73 [2001], lv denied 96 NY2d 868 [2001]).