| People v Ward |
| 2013 NY Slip Op 01294 [103 AD3d 925] |
| February 27, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Adrian Ward, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Hinrichs, J.), rendered February 19, 2010, convicting him of attempt to evade or defeattaxes on cigarettes and tobacco products, ten thousand cigarettes or more, upon his pleaof guilty, and imposing sentence, including a direction that the defendant pay restitutionin the sum of $9,042,437.50.
Ordered that the judgment is modified, on the law, by vacating the provision thereofdirecting the defendant to pay restitution in the sum of $9,042,437.50; as so modified, thejudgment is affirmed, and the matter is remitted to the County Court, Suffolk County, fora hearing and a new determination as to the proper amount of restitution and the mannerof payment thereof.
The defendant was a participant in a scheme to sell cigarettes without payment of therequired taxes. He pleaded guilty to a class E felony under the Tax Law (seeformer Tax Law § 1814 [a] [2] [ii]) in exchange, inter alia, for the promise of aspecific prison term and a payment of restitution in the sum of $9,042,437.50. Atsentencing, however, the defendant objected to the amount of restitution. The CountyCourt, nevertheless, sentenced the defendant as promised, including the entry of ajudgment directing the payment of restitution in the amount provided for in thedefendant's plea agreement. On appeal, the defendant claims that the court should haveheld a hearing as to the proper amount of restitution.
Penal Law § 60.27 (2), which provides for restitution, is clear as to when ahearing must be held in setting the amount of restitution: "Whenever the court requiresrestitution or reparation to be made, the court must make a finding as to the dollaramount of the fruits of the offense and the actual out-of-pocket loss to the victim causedby the offense . . . If the record does not contain sufficient evidence tosupport such finding or upon request by the defendant, the court must conduct a hearingupon the issue in accordance with the procedure set forth in section 400.30 of thecriminal procedure law" (emphasis added). Thus, a hearing must be held if the recorddoes not contain sufficient facts or if the defendant requests a hearing (see People vCharles, 309 AD2d 873, 874 [2003]; People v Stubbs, 281 AD2d 498, 498[2001]; People v Lambert, 221 AD2d 1015, 1015 [1995]). Here, the defendantpreserved his claim for appellate review by contesting the amount of restitution at [*2]sentencing (cf. People v Isaacs, 71 AD3d 1161, 1161 [2010]).Although he did not specifically request a hearing, the record contains no evidence fromwhich the proper amount of restitution may be determined. The fact that the defendant'splea agreement provided for a specific amount of restitution does not relieve the Peoplefrom the requirement that they establish a record basis for that amount (see PenalLaw § 60.27 [2]; People v Consalvo, 89 NY2d 140, 146 [1996];People v Harden, 174 AD2d 691, 692 [1991]; People v Barnes, 135AD2d 825, 826 [1987]). Consequently, the matter must be remitted to the County Court,Suffolk County, for a hearing and a new determination as to the proper amount ofrestitution and the manner of payment thereof (see People v Yong Ho Han, 200AD2d 780, 782 [1994]; People v Barnes, 135 AD2d at 826). Skelos, J.P., Balkin,Dickerson and Hinds-Radix, JJ., concur.