| People v McLean |
| 2009 NY Slip Op 01366 [59 AD3d 859] |
| February 26, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v SamuelMcLean, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Matthew J. Sypniewski of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered June 4, 2004, convicting defendant upon his plea of guilty of the crime of robbery inthe second degree.
In satisfaction of three pending indictments, defendant pleaded guilty to one count ofrobbery in the second degree, waived his right to appeal and thereafter was sentenced as asecond violent felony offender to a prison term of 12 years, followed by five years of postreleasesupervision. Additionally, defendant was ordered to pay restitution in the amount of $5,667.90,including the applicable surcharges. Defendant now appeals.
Initially, we reject defendant's claim that the People breached the plea agreement and, assuch, County Court should have afforded defendant the opportunity to withdraw his plea. Simplyput, the plea colloquy reflects nothing more than the People's willingness to recommend adeterminate sentence of nine years if defendant provided certain information regarding anongoing investigation. As summarized by defense counsel, "[I]t's understood and agreed thatshould any testimony or anything from [defendant] be necessary and is utilized, that the Peoplewill recommend a lesser sentence than the twelve to be imposed, depending on how the matterworks out. But [defendant] understands by pleading guilty today, it ends his three cases with thisCourt. His worse [sic] exposure is a twelve-year determinate sentence, concurrent withAlbany [*2]County." County Court further clarified thesentencing proposal, asking defendant if he understood that he would be sentenced "tosomewhere between nine years and twelve years in prison," to which defendant responded in theaffirmative. Contrary to defendant's assertion, the foregoing does not reflect an unconditionalcommitment on the part of the People to recommend a lesser sentence, nor does the recordsubstantiate defendant's claim that County Court agreed to be bound by any suchrecommendation. Under these circumstances, we are unable to conclude that defendant's pleawas induced by a firm promise that was breached (see People v Jones, 184 AD2d 528,529 [1992]).
We do, however, agree with defendant that County Court erred in failing to conduct arestitution hearing. Preliminarily, inasmuch as the amount of restitution ordered was not made apart of the underlying plea agreement, defendant is not precluded from raising this issue byvirtue of his waiver of the right to appeal (see People v Durant, 41 AD3d 976, 977 [2007]). Further, bycontesting the amount of restitution and requesting a hearing, defendant has preserved this issuefor our review (compare People vCoston, 55 AD3d 943, 946 [2008]; People v Golgoski, 40 AD3d 1138 [2007]).
Turning to the merits, with respect to the $5,037.90 ordered as restitution for Gordon Collier,one of the two victims at issue, the People provided County Court with an insurance estimate,marked "paid," to substantiate the damage caused to Collier's vehicle. This document, however,sheds no light upon the reasonableness of the estimated repairs, what repairs actually wereperformed or how much, if any, of this loss was covered by insurance. Moreover, the recordbefore us does not contain any documentation to support the $630 ordered as restitution for theother victim. As the record as a whole is insufficient to support the total amount of restitutionordered, a hearing in this regard is required (see People v Snyder, 23 AD3d 761, 763 [2005]).
Mercure, J.P., Kane, Malone Jr. and Stein, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing so much thereof as ordered restitution; matter remitted to theCounty Court of Schenectady County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.