| People v Naumowicz |
| 2010 NY Slip Op 06386 [76 AD3d 747] |
| August 12, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DianeNaumowicz, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered January 9, 2008, convicting defendant upon her plea of guilty of the crimes of grandlarceny in the second degree and issuing a bad check (two counts).
Defendant owned and operated a payroll business that provided a variety of services to itsclients, primarily small businesses, including such tasks as processing payroll and tax liabilities.Several of defendant's clients implicated defendant in the misappropriation of their funds. Afterwaiving indictment and agreeing to be prosecuted by superior court information, defendantpleaded guilty to one count of grand larceny in the second degree and two counts of issuing abad check and waived her right to appeal. The plea agreement included an indeterminatesentence to be determined by County Court and restitution in an amount to be calculated, butrepresented as being between $300,000 and $500,000.
County Court thereafter sentenced defendant to a prison term of 4 to 12 years for the crimeof grand larceny in the second degree and a concurrent term of 90 days in jail on the convictionsof issuing a bad check. At the time of sentencing, County Court also directed defendant to payrestitution to 13 separate victims in the total amount of $434,916.75. More than three monthslater, the People moved to have County Court order additional restitution in excess of $300,000with respect to victims who were not included in the orders made at the time of [*2]sentencing. While incarcerated, defendant executed the additionalrestitution orders, indicating her agreement to pay the amounts included therein, and CountyCourt subsequently signed such orders. Defendant now appeals.
Defendant raises various arguments regarding the validity of her plea based upon theasserted impropriety of the restitution orders. Defendant first contends that her plea was notknowing, intelligent and voluntary because she was not made aware of the amount of restitutionto be paid as part of her sentence. Although defendant's argument that her guilty plea wasinvoluntary is not foreclosed by her appeal waiver (see People v Nesbitt, 23 AD3d 836, 837 [2005], lv denied6 NY3d 816 [2006]), this claim was not preserved for our review as she did not move towithdraw her plea or to vacate her sentence (see People v Bennett, 24 AD3d 975, 975 [2005], lv denied6 NY3d 831 [2006]). Nor does it fall within the narrow exception to the preservation rule(see People v Lopez, 71 NY2d 662, 666-667 [1988]). Likewise, defendant did notpreserve her argument that the restitution orders were improper based upon County Court'sfailure to consider her ability to pay, as she did not request a hearing on that issue or otherwiseobject to the amount of restitution ordered on that basis. In any event, such consideration was notrequired under the circumstances here (see People v Henry, 64 AD3d 804, 806-807 [2009], lvdenied 13 NY3d 860 [2009]). Thus, to the extent that defendant's arguments relate to therestitution orders made at the time of sentencing, our review is precluded and we decline to takecorrective action in the interest of justice.
However, we reach a different conclusion as to defendant's arguments regarding therestitution orders made after her sentencing hearing. Inasmuch as those arguments are addressedto County Court's jurisdiction to make such orders and to the legality thereof, and sincedefendant's challenges to the postsentence orders relate to the " 'mode of proceedings prescribedby law,' " they need not be preserved (People v Ahmed, 66 NY2d 307, 310 [1985],quoting People v Patterson, 39 NY2d 288, 295 [1976]; see People v Boston, 75NY2d 585, 589 n [1990]).[FN1]County Court is authorized to order restitution in an amount that will compensate the victim of acrime for his or her "actual out-of-pocket loss" (Penal Law § 60.27 [1]) and must make afinding as to the amount of such loss upon consideration of "sufficient evidence [in the record] tosupport such finding" (Penal Law § 60.27 [2]). Indeed, in view of the "long-standingpolicy of promoting, encouraging and facilitating the use of restitution to reimburse victims for. . . losses caused by criminal conduct" (People v Horne, 97 NY2d 404, 412[2002]), a sentencing court is obligated to address the issue of restitution where the Peopleadvise the court at or before sentencing that a victim seeks restitution or where a "victim impactstatement reports that the victim seeks restitution or reparation" (Penal Law § 60.27 [1];see People v Horne, 97 NY2d at 410-412). Thus, in the normal course of events, thePeople must "advise the court 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 [*3]the time of sentencing (see People v Consalvo, 89 NY2d140, 144 [1996]). However, the court's continuing jurisdiction to impose restitution has beenrecognized where the claim for restitution is raised at or prior to sentencing and the modificationor correction of the sentence occurs within a reasonable time thereafter (see Penal Law§ 60.27 [1]; People v Swiatowy, 280 AD2d at 73; People v Kevin C., 265AD2d 828, 828-829 [1999]; People v Daprano, 224 AD2d 441, 441-442 [1996], lvdenied 88 NY2d 965 [1996]).
Here, County Court's award of restitution at the time of sentencing in the total amount of$434,916.75 was supported by depositions in the record and a reference in the presentenceinvestigation report to letters received by the Probation Department detailing the victims' lossesin that aggregate amount. In addition, statements were made by the People and by defendant ator before sentencing indicating that restitution to all victims was contemplated, and six of theeight restitution claims addressed in the postsentencing orders were set forth in victim impactstatements that were provided to County Court prior to sentencing. Although County Courtmistakenly overlooked those victim impact statements, it called its error to the parties' attentiononly five days after defendant was sentenced and inquired if defendant would consent to theissuance of six additional restitution orders. The People then moved for additional restitutionorders to be issued and a resentencing and restitution hearing was scheduled.[FN2]Under these circumstances, County Court properly sought to correct its failure to consider thesevictims' timely requests.
Nonetheless, "[a] sentencing court may not impose a more severe sentence than onebargained for without providing [the] defendant the opportunity to withdraw his [or her] plea"(People v Brown, 198 AD2d 901, 901 [1993]). Here, not only was the sentence amendedto include additional restitution, these postsentence restitution orders would raise the totalamount that defendant would be required to pay beyond the anticipated monetary rangepresented by the People to which defendant agreed at the time of her plea. Inasmuch asdefendant now seeks vacatur of her plea, this matter should be remitted to permit defendant toeither withdraw her plea or consent to the higher restitution amount sought in the six victimimpact statements presented to County Court at or before the time of defendant's originalsentencing or, alternatively, to permit County Court to dispense with some of these claims in theinterest of justice and resentence defendant within the agreed-upon range (see Penal Law§ 60.27 [1]; People vPickens, 45 AD3d 1187, 1188 [2007], lv denied 10 NY3d 769[2008]).[FN3]
On the other hand, the remaining two restitution claims addressed in the postsentencingorders were not brought to County Court's attention until well after sentencing. Inasmuch as theconditions required for imposition of restitution were not met with respect to these two claims(see People v Kevin C., 265 AD2d at 828-829; see also People v Dickson, 260AD2d 931, 933-[*4]934 [1999], lv denied 93 NY2d 1017[1999]), County Court erred in modifying defendant's sentence to include them. Accordingly, thepostsentencing restitution orders with respect to such claims must be vacated.
Defendant's contention that she did not receive the effective assistance of counsel is relatedto perceived failures on counsel's part with respect to the restitution orders. To the extent thatdefendant's claims relate to representation prior to the filing of the notice of appeal, they areunpreserved as a result of her failure to move to withdraw her plea or vacate the judgment ofconviction (see People v Bennett, 24 AD3d at 975). In any event, based upon our reviewof the record and the circumstances of the case, viewed in totality, we are satisfied that counselprovided meaningful representation (seePeople v Turner, 5 NY3d 476, 480 [2005]; People v Baldi, 54 NY2d 137, 147[1981]). Thus, defendant's claims—including those concerning events occurring after thenotice of appeal was filed, to the extent they are not rendered academic by our determinationherein—are without merit.
Mercure, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the postsentencing restitution orders; matter remitted to theCounty Court of Saratoga County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote 1: Although restitution orders aregenerally not reviewable on appeal (see CPL 450.10; People v Russo, 68 AD3d 1437, 1437 n 2 [2009]; People v Fricchione, 43 AD3d410, 411 [2007]; but see People v Knowles, 293 AD2d 770, 771 [2002]), inasmuchas we deem the postsentence restitution orders here to be amendments to the judgment ofconviction, our review of such orders is appropriate (see People v Russo, 68 AD3d at1437 n 2; see also People v Swiatowy, 280 AD2d 71, 73 [2001], lv denied 96NY2d 868 [2001]).
Footnote 2: The restitution hearing was notheld because defendant consented to the issuance of the additional restitution orders.
Footnote 3: Remittal remains the suitableremedy despite defendant's consent to the issuance of the additional restitution orders; nothing inthe record indicates that she was given any option to do otherwise (see People v McDowell, 56 AD3d955, 956 [2008]; People vBranch-El, 12 AD3d 785, 786 [2004], lv denied 4 NY3d 761 [2005]).