| People v Mahar |
| 2013 NY Slip Op 06036 [109 AD3d 1047] |
| September 26, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Erica M. Mahar, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered May 18, 2010, which resentenced defendant following her conviction of thecrime of grand larceny in the fourth degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and pleadedguilty in August 2008 to a reduced count of grand larceny in the fourth degree insatisfaction of a superior court information with the understanding that she would besentenced to, among other things, five years of probation and ordered to pay $9,700 inrestitution related to her theft of jewelry. Following defendant's plea, sentencing waspostponed several times due principally to defendant's drug treatment commitments andattempts to ascertain the correct amount of restitution from the victim. Notably, inOctober 2008, County Court received the presentence investigation report, whichincluded a request for restitution from the victim stating that the value of the stolenjewelry was much greater than the amount referenced in the plea agreement. Ultimately,defendant was sentenced on September 14, 2009 to, among other things, five years ofprobation and ordered to pay restitution in the amount of $2,500. Subsequently, the court[*2]determined that the restitution amount wasincorrect,[FN1]and it notified defendant that a restitution hearing would ensue. That hearing washeld—over defendant's objection—on May 7, 2010, at which time thevictim testified in detail about the stolen items, and numerous receipts and appraisalswere submitted into evidence that exceeded the original amount of restitution. As aresult, on May 18, 2010, the court resentenced defendant by changing the restitutionamount to $28,652.81, plus applicable fees and surcharges,[FN2]and it amended the terms of her probation accordingly. This appeal ensued.[FN3]
Initially, we are unpersuaded by defendant's claim that County Court lacked theauthority to amend the amount of restitution after defendant's original sentencing inSeptember 2009. Notably, "in the normal course of events, the People must 'advise thecourt at or before the time of sentencing that the victim seeks restitution . . .and the amount of restitution . . . sought' (Penal Law § 60.27 [1]),and the trial court must determine the amount of restitution at the time of sentencing" (People v Naumowicz, 76AD3d 747, 749 [2010]). Nevertheless, "the court's continuing jurisdiction to imposerestitution has been recognized where the claim for restitution is raised at or prior tosentencing and the modification or correction of the sentence occurs within a reasonabletime thereafter" (id. at 749; see generally People v Morrishaw, 92 AD3d 1088,1088-1089 [2012], lv denied 18 NY3d 996 [2012]; People v Russo, 68 AD3d1437 [2009]).
Here, we do not find the delay between defendant's September 2009 sentencing andthe modification of the restitution order in September 2010 following a hearingunreasonable given the various factors presented by this case (see People vKnowles, 293 AD2d 770, 771 [2002]). "Nonetheless, [a] sentencing court may notimpose a more severe sentence than one bargained for without providing [the] defendantthe opportunity to withdraw his [or her] plea" (People v [*3]Naumowicz, 76 AD3d at 750 [internal quotation marksand citation omitted]). Thus, in light of the fact that the amended restitution amountunquestionably exceeds the total amount to which defendant agreed at the time of herplea and she seeks, among other things, vacatur of that plea herein, we deem itappropriate to remit the matter for the purpose of allowing defendant the opportunity toeither accept the enhanced restitution amount or withdraw her plea (see id.;People v Brown, 198 AD2d 901 [1993]).
Stein, McCarthy and Spain, JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the amended restitution order imposed; matter remitted to theCounty Court of Broome County for further proceedings not inconsistent with thisCourt's decision; and, as so modified, affirmed.
Footnote 1: County Court indicatedthat the $2,500 amount arrived at in the September 2009 sentencing appeared to reflectthe amount that the victim was reimbursed by her insurance company as opposed to heractual out-of-pocket loss.
Footnote 2: We note that, beyondasserting that any restitution order should not exceed the total amount of $9,700 set forthin the original plea agreement, defendant takes no issue with the specific amounts setforth as a result of the restitution hearing.
Footnote 3: While the People, citingCPL 450.10, claim that defendant is challenging a nonreviewable restitution orderherein, "inasmuch as we deem the postsentence restitution order[ ] here to be [a]namendment[ ] to the judgment of conviction, our review . . . is appropriate"(People v Naumowicz, 76AD3d 747, 749 n 1 [2010]; see People v Morrishaw, 92 AD3d 1088, 1088 n 1 [2012],lv denied 18 NY3d 996 [2012]). Moreover, given defendant's objection toCounty Court's authority to amend the restitution amount after the original sentencing,we do not agree with the People's contention that defendant failed to preserve herchallenge by moving to withdraw her plea or making a postjudgment motion (seePeople v Naumowicz, 76 AD3d at 748-749).