| People v Pelkey |
| 2009 NY Slip Op 04306 [63 AD3d 1188] |
| June 4, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Francis J.Pelkey, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh (Chantelle Schember of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.), renderedMay 21, 2008, convicting defendant upon his pleas of guilty of the crimes of identity theft in thefirst degree (two counts), criminal possession of a forged instrument in the second degree (threecounts), criminal possession of stolen property in the fourth degree (three counts) and grandlarceny in the fourth degree (three counts).
Defendant stole his father-in-law's[FN1]identity and used it to procure several loans. He thereafter pleaded guilty to identity theft in thefirst degree in satisfaction of a superior court information (hereinafter SCI) charging him withthat crime and the crime of grand larceny in the third degree. The plea was made in exchange fora prison sentence of 2 to 4 years plus restitution. Defendant fled the jurisdiction prior tosentencing and was found in Utah, where he was arrested pursuant to a warrant issued as a resultof his failure to appear at sentencing. Prior to leaving the state, defendant stole another person'sidentity to obtain money to fund his departure. In connection therewith, defendant pleaded guiltyto each count of a 10-count indictment for which he received a prison sentence of 3½ to 7years on each count to run concurrently with each other but consecutive to the sentence imposedfor the conviction of the [*2]crime in the SCI,[FN2]plus restitution in an amount to be determined by the Clinton County Probation Department. Healso received the People's agreement to forgo pursuit of federal charges against him or his wife,who arguably aided him in fleeing from New York. Defendant was sentenced, as a second felonyoffender, in accordance with his agreements and restitution was set without a hearing in the totalamount of $81,468.52, which included extradition charges of $1,956.98 incurred by the ClintonCounty District Attorney's office. Defendant now appeals.
We reject defendant's contention that he was entitled to a hearing on his postsentencingmotion to withdraw his guilty pleas. Defendant, while represented by counsel with whom he hadexpressed his satisfaction, made a detailed allocution to the crimes of which he was convictedand stated that his pleas were not coerced. Defendant's subsequent claims that he felt coerced bythe People's threats to prosecute his wife are unavailing, as "[t]he prosecutor is free to dictate theterms under which a plea will be accepted" (People v Eaddy, 200 AD2d 896, 897 [1994],lv denied 83 NY2d 852 [1994]), including consequences relating to alleged criminalconduct of a family member, and defendant was free to reject the plea offer (see People vSeaberg, 74 NY2d 1, 9 [1989]). Based on our review of the entire record before us, we areconvinced that defendant's pleas were made knowingly, intelligently and voluntarily and find noabuse of discretion in County Court's summary denial of defendant's motion (see People v McMillan, 55 AD3d1064, 1065-1066 [2008], lv denied 11 NY3d 899 [2008]; People v Wyant, 47 AD3d 1068,1069 [2008], lv denied 10 NY3d 873 [2008]; People v Murray, 25 AD3d 911, 912 [2006], lv denied 6NY3d 896 [2006]).
Nor do we discern any error in County Court's determination that defendant was subject to apredicate felony offense. The People established "beyond a reasonable doubt the existence of [a]previous felony conviction" (People v Harris, 61 NY2d 9, 15 [1983]), thus shifting theburden to defendant to specifically allege and prove facts demonstrating that the prior felonyconviction was unconstitutionally obtained (see CPL 400.21; People v Harris, 61NY2d at 15). Defendant's general assertion that his previous conviction should not have been afelony was insufficient to warrant a hearing (see CPL 400.21).
We agree, however, with defendant's contention that the award of restitution was contrary tolaw.[FN3]First, County Court improperly relied entirely on the report of the Probation Department toascertain the amount of restitution. In making a finding as to the dollar amount of the fruits of adefendant's offense, the court may rely on the Probation Department as a preliminary factfinder,but may not rely solely on the Probation Department's recommendations or delegate to theProbation Department its authority to set the amount of restitution; the court must make the finaldetermination based on record evidence (see Penal Law § 60.27; People vConsalvo, 89 NY2d 140, 144 [1996]; People v Fuller, 57 NY2d 152, 158-159[1982]; People v Frisco, 221 AD2d 779, 780 [1995]). When the record evidence isinsufficient to support such a finding, County Court must hold a hearing (see People vConsalvo, 89 NY2d at 144-145; People v Harrington, 3 AD3d 737, 739 [2004]). Thus,notwithstanding the People's contention here that [*3]defendantagreed to pay restitution as established by the Probation Department, defendant cannot waive ahearing to determine the amount of restitution in the absence of facts in the record establishing abasis upon which County Court could determine the value of the fruits of his offenses (seePeople v Consalvo, 89 NY2d at 144-145; People v Fuller, 57 NY2d at 156; People v Casiano, 8 AD3d 761,762 [2004]). The only record evidence of such amount are defendant's statements in his pleaallocution that he took in excess of $9,000. It is evident that, in setting the amount of restitution,County Court relied entirely on the Probation Department's findings which, although generallyadmissible (see CPL 400.30), were not sufficiently detailed or substantiated to support afinding by the court that the total amount alleged by the Probation Department wasowed.[FN4]
The award of extradition costs as part of the restitution was also unsupported by law.Extradition costs are normal operating costs of the law enforcement agency—which is notconsidered a "victim" of defendant's crime—and, therefore, are not ordinarily part ofrestitution (see People v LaValley, 272 AD2d 786, 786 [2000], lv denied 95NY2d 906 [2000]; People v La Fave, 265 AD2d 740, 742 [1999], lv denied 94NY2d 881 [2000]). Although a defendant may agree to pay such costs as part of a pleaagreement (see CPL 570.56; People v Burke, 47 AD3d 1161, 1161 [2008]; People vPerry, 261 AD2d 650, 650-651 [1999], lv denied 93 NY2d 1024 [1999]), there is norecord evidence that defendant did so here.
We are precluded from reviewing defendant's claim that the sentences imposed for hisconvictions of the crimes charged in the indictment—including the enhanced sentenceimposed for the first count of the SCI—were harsh and excessive by virtue of the validwaiver of appeal that he executed in connection with his pleas to those crimes (see People v Burt, 57 AD3d 1171[2008]; People v Schmidt, 57 AD3d1104 [2008]).
Cardona, P.J., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment is modified,on the law, by reversing so much thereof as made an award of restitution; matter remitted to theCounty Court of Clinton County for a restitution hearing; and, as so modified, affirmed.
Footnote 1: Although at the time of the theftof Gary Freeman's identity defendant was engaged to Freeman's daughter, he later married her.
Footnote 2: For this conviction, afterreaffirming his guilty plea, defendant received an enhanced prison sentence of 3½ to 7years plus restitution in the amount of $46,121.18.
Footnote 3: We note that our review is notbarred by defendant's failure to preserve his claims at the sentencing proceeding (see Peoplev Fuller, 57 NY2d 152, 156 [1982]; People v Casiano, 8 AD3d 761, 762 [2004]).
Footnote 4: For example, the letter from theNavy Federal Credit Union upon which the Probation Department relied provides no explanationof the amounts listed as losses in connection with loans in the names of defendant and his wife.However, the letter was arguably sufficient to establish the monetary loss resulting fromdefendant's use of a credit card obtained by the theft of Joshua Wright's identity and several loanaccounts obtained by the theft of Freeman's identity.