| People v Stevens |
| 2011 NY Slip Op 00046 [80 AD3d 791] |
| January 6, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robin S.Stevens, Jr., Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Christopher I. Simser Sr. of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Cortland County (Campbell,J.), rendered March 12, 2009, convicting defendant upon his plea of guilty of the crimes ofcriminal sale of a controlled substance in the third degree and grand larceny in the fourth degree.
After defendant sold cocaine, an indictment was handed up charging him with one count ofcriminal sale of a controlled substance in the third degree. A separate indictment charged himwith two counts of grand larceny in the fourth degree for his theft of two shotguns. Subsequently,defendant pleaded guilty to one count of criminal sale of a controlled substance in the thirddegree and one count of grand larceny in the fourth degree in satisfaction of both indictments.Pursuant to that plea, defendant executed waivers of appeal. County Court thereafter imposedconcurrent sentences of two years in prison followed by two years of postrelease supervision forthe criminal sale of a controlled substance conviction and 1
Defendant's valid waiver of appeal precludes us from addressing his argument that hisagreed-upon sentence is harsh and excessive (see People v Houck, 74 AD3d 1476, 1477 [2010]; People v Walley, 63 AD3d 1284,1286 [2009]). While surviving his waiver of the right to appeal, defendant's contention that hisplea was rendered involuntary by the ineffective assistance [*2]ofcounsel is unpreserved for our review due to defendant's failure to move to withdraw his plea orvacate the judgment of conviction (seePeople v Davis, 74 AD3d 1490, 1490 [2010], lv denied 15 NY3d 850 [2010]; People v Volfson, 69 AD3d 1123,1124 [2010]; People v Scitz, 67AD3d 1251, 1251-1252 [2009]).
County Court erred by setting a restitution amount without conducting a restitution hearingbecause there was insufficient evidence to determine the victim's loss. Because the pleaagreement required defendant to pay restitution but did not contain the specific amount to bepaid, defendant's waiver of his right to appeal does not preclude him from challenging therestitution order (see People vEmpey, 73 AD3d 1387, 1388 [2010], lv denied 15 NY3d 804 [2010]; People v Thomas, 71 AD3d 1231,1232 [2010], lv denied 14 NY3d 893 [2010]).[FN*]Defendant preserved this challenge when counsel questioned the amount of restitution atsentencing (see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Empey,73 AD3d at 1389; People v Thomas, 71 AD3d at 1232).
As to the merits of defendant's argument, a restitution hearing must be held where the recordlacks sufficient evidence for a court to determine the amount of restitution ordered or thedefendant requests such a hearing (see Penal Law § 60.27 [2]). A trial court maynot rely entirely on the Probation Department's recommendations when ordering restitution(see People v Fuller, 57 NY2d 152, 158-159 [1982]; People v Consalvo, 89NY2d 140, 145 [1996]; People vPelkey, 63 AD3d 1188, 1190 [2009], lv denied 13 NY3d 748 [2009]). Here,County Court did just that by ordering "restitution in the amount of $1,460.96, per the probationreport." The only record support for this amount came from the presentence investigation report,which was based solely on a letter received from the victim of the larceny. No other evidence iscontained in the record to support the amount of damages requested by the victim. In fact, thevictim claimed that he was entitled to $700 to have the barrel of his gun replaced and new fiberoptic sights put on, but the felony complaint alleged that defendant stole a shotgun with a slugbarrel and glow sights valued at approximately $600. Not only is it unclear why the barrel needsto be replaced but, at sentencing, defense counsel aptly noted that the value of the replacementbarrel was higher than the value of the entire gun. Additionally, the victim sought—andreceived—$760.96 for five lost days of work, but it is unclear who lost days from work,what that person's daily wage was, and how those days were related to defendant's offense. Forexample, the victim's letter, attached to the presentence investigation report, states that thevictim's wife took at least one day off from work before even discovering that the shotguns weremissing. As County Court relied solely on the presentence investigation report, which is itselfbased on insufficient evidence to uphold the restitution ordered, a hearing is required todetermine the appropriate amount of restitution (see People v Travis, 64 AD3d 808, 808-809 [2009]; People vPelkey, 63 AD3d at 1190-1191; People v Monette, 199 AD2d 589 [1993]).
Peters, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the judgment is modified, onthe law, by reversing so much thereof as ordered restitution; matter remitted to the County Courtof Cortland County for a restitution hearing; and, as so modified, affirmed.
Footnote *: Although defendant agreed, aspart of his plea bargain, "to make any reasonable amount of restitution that may be requested bythe victim without the necessity of a hearing," we do not consider defendant to have given up hisright to a hearing here because it is unclear whether the amount requested was reasonable (seePeople v Consalvo, 89 NY2d 140, 144-145 [1996]).