| People v Ayers |
| 2007 NY Slip Op 08509 [45 AD3d 1290] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Crystal L.Ayers, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Kathleen H. Valone of counsel), forrespondent.
Appeal from an amended sentence of the Ontario County Court (Frederick G. Reed, J.),rendered February 15, 2006. The amended sentence ordered defendant to pay restitution in theamount of $90,939 following her conviction, upon her plea of guilty, of grand larceny in the thirddegree.
It is hereby ordered that the amended sentence so appealed from be and the same hereby isunanimously modified on the law by providing that the amount of restitution to be paid bydefendant is $89,995 and as modified the amended sentence is affirmed.
Memorandum: Defendant appeals from an amended sentence ordering her to pay restitutionin the total amount of $90,939. Defendant's contention that County Court failed to honor the pleaagreement with respect to the amount of restitution is unpreserved for our review (seeCPL 470.05 [2]). At sentencing, the store owner informed the court that he sought restitutionfrom defendant for the value of the lottery tickets stolen from his store. Defendant did not objectto the calculation of restitution in that manner. Rather, defense counsel requested a restitutionhearing because he had "some questions about that figure." In any event, defendant's contentionis without merit because the record establishes that the court honored the plea agreement bysentencing defendant to six months in jail and five years of probation and by ordering her to payrestitution in an amount to be determined by the court following a hearing.
Contrary to defendant's further contention, the court employed the correct methodology incalculating the amount of restitution, and that methodology was not, as defendant contends, theamount of lottery winnings taken by her. Penal Law § 60.27 (1) permits a court to order a"defendant to make restitution of the fruits of his or her offense or reparation for the actualout-of-pocket loss caused thereby." "According to this definition, 'restitution may be no greaterthan the sum necessary to compensate the victim for out-of-pocket losses' " (People v Tzitzikalakis, 25 AD3d404, 408 [2006], affd 8 NY3d 217 [2007], quoting People v Consalvo, 89NY2d 140, 144 [1996]). In view of the business relationship between the New York Lottery andits retailers, the victim of defendant's crime was the store owner from whom the lottery ticketswere stolen, not the New York Lottery itself. We thus conclude that the methodology employedby the court to [*2]determine the victim's out-of-pocket loss wasproper (see generally People v Nicometo, 309 AD2d 1172 [2003], lv denied 1NY3d 631 [2004]; People v Consalvo, 303 AD2d 202 [2003], lv denied 100NY2d 593 [2003]). The People established by the requisite preponderance of the evidence thatthe victim sustained an out-of-pocket loss of $78,725 as a result of the theft, equaling 94% of theretail value of the stolen lottery tickets, which was $83,750. The People also established that thevictim must pay $3,089 in interest to the New York Lottery pursuant to his deferred paymentplan, for total restitution of $81,814. The People thus established that the total amount payable bydefendant in restitution is $89,995, based on the additional 10% probation collection surcharge,and we therefore modify the amended sentence accordingly.
There is also no merit to defendant's remaining contention that the court erred inordering restitution over the statutory "cap" of $15,000 (see Penal Law § 60.27 [5][a]). Penal Law § 60.27 (5) (b) provides that a court in its discretion may imposerestitution or reparation in excess of $15,000 where the amount in excess represents "the returnof the victim's property, including money, or the equivalent value thereof." Here, because thestolen lottery tickets were the property of the store owner, the amount ordered for restitution wasintended to reimburse him for the return of his property or the equivalent value thereof andproperly fell within the exception to the statutory "cap" (see People v Horne, 97 NY2d404, 414 [2002]). Present—Scudder, P.J., Gorski, Centra, Lunn and Peradotto, JJ.