| People v Wilson |
| 2009 NY Slip Op 01252 [59 AD3d 807] |
| February 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jermaine L.Wilson, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (John N. Clo of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Montgomery County (Catena,J.), rendered January 8, 2007, convicting defendant upon his plea of guilty of the crime ofburglary in the second degree.
In satisfaction of a three-count indictment, defendant pleaded guilty to burglary in thesecond degree, waived his right to appeal and was sentenced, as a second felony offender, to sixyears in prison and five years of postrelease supervision. Following a hearing, at which one ofthe victims appeared and testified, County Court ordered that defendant pay restitution in theamount of $10,860. This appeal by defendant ensued.
As we noted when this matter was last before us, defendant's challenge to the amount ofrestitution ordered is not precluded by his valid waiver of the right to appeal (50 AD3d 1395[2008]; see People v Durant, 41AD3d 976, 977 [2007]). Turning to the merits, in the context of the restitution hearing, "thePeople bore the burden of proving the victim's out-of-pocket expenses by a preponderance of theevidence" (People v Russell, 41AD3d 1094, 1096 [2007], lv denied 10 NY3d 964 [2008]). In this regard, one of thevictims testified that the safe stolen from his home contained $10,000 in cash, a gold braceletvalued at approximately $400, a recently purchased video camera valued at approximately $450,two baseball cards and miscellaneous watches and paperwork. Defendant admitted that the safecontained roughly $1,600 in cash, paperwork and two baseball cards but denied finding a videocamera or any jewelry. County Court ultimately awarded restitution in the amount of $10,860,representing $10,000 for the missing cash, $430 for the video camera, $400 for the gold braceletand $30 for the [*2]miscellaneous watches.
While sworn testimony at a restitution hearing indeed qualifies as evidence of a victim'sout-of-pocket expenses (see id. at 1096), which County Court, in turn, plainly is entitledto credit, we nonetheless are not persuaded that the victim's conclusory and otherwiseunsubstantiated testimony as to the loss sustained here is sufficient to discharge the People'sburden of proof. No receipts or invoices were provided for either the video camera or the goldbracelet, nor did the victim provide any details for those items, i.e., brand name, features, size,weight or date of purchase, that would have aided the court in arriving at an appropriate valuetherefor. Similarly, although the victim testified that the $10,000 in allegedly stolen cashrepresented payments made to him by his clients for services rendered and the proceeds from thesale of his boat, there was no client testimony, boat purchaser testimony, bills, invoices, receipts,or other documents or, indeed, any evidence offered to corroborate the victim's testimony andsubstantiate this figure. Absent "appropriate bills, estimates or proofs of loss" (People vAshley, 162 AD2d 883, 885 [1990], lv denied 76 NY2d 852 [1990]), we find therecord insufficient to support the total amount of restitution ordered (compare People vRussell, 41 AD3d at 1096-1097) and therefore remit for an appropriate restitution order.
Mercure, J.P., Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment is modified,on the law, by reversing so much thereof as awarded restitution in the amount of $10,860; matterremitted to the County Court of Montgomery County for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.