| People v Pugliese |
| 2014 NY Slip Op 00033 [113 AD3d 1112] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Joseph J. Pugliese, Appellant. |
—[*1] Jeffrey S. Carpenter, District Attorney, Herkimer (Jacquelyn M. Asnoe of counsel),for respondent.
Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), renderedNovember 10, 2011. The judgment convicted defendant, upon his plea of guilty, ofassault in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reducing the amount of restitution to $5,915.07 and as modified the judgmentis affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofassault in the third degree (Penal Law § 120.00) and ordering him to payrestitution in the amount of $7,115.07, defendant contends that County Court erred infailing to consider his ability to pay restitution. Defendant failed to preserve thatcontention for our review inasmuch as he "did not request a hearing on that issue orotherwise object to the amount of restitution ordered on that basis" (People v Naumowicz, 76AD3d 747, 748 [2010]; seePeople v Willis, 105 AD3d 1397, 1397 [2013], lv denied 22 NY3d 960[2013]; People v Dillon, 90AD3d 1468, 1468-1469 [2011], lv denied 19 NY3d 1025 [2012]). In anyevent, the record establishes that the court considered defendant's ability to payrestitution pursuant to Penal Law § 65.10 (2) (g) (see Dillon, 90 AD3d at1469; Matter of Jessie GG., 190 AD2d 916, 917 [1993]). The court inquired atthe restitution hearing about defendant's employment status and whether he had anydependents, and the presentence report reviewed by the court detailed defendant'seducational background and employment income (see Dillon, 90 AD3d at 1469).
Defendant next contends that the People failed to meet their burden of establishingthe amount of restitution by a preponderance of the evidence (see People v Tzitzikalakis, 8NY3d 217, 221 [2007]). Specifically, defendant contends that the court erred indirecting him to make restitution for the business income and the value of the sick leavethat the victim allegedly lost as a result of the assault. Contrary to the contention ofdefendant, we conclude that the People established the value of the sick leave throughthe victim's testimony at the restitution hearing and supporting documentation from thevictim's employer and physician (see People v Wilson, 108 AD3d 1011, 1013 [2013]; People v LaVilla, 87 AD3d1369, 1370 [2011]). We agree with defendant, however, that the People failed toestablish the amount of income, if any, the victim lost from his auction business as aresult of the assault (see Peoplev Wilson, 59 AD3d 807, 808-809 [2009]). The [*2]documentation in the record does not substantiate thevictim's claimed loss of income and, indeed, the victim acknowledged that any lostincome from his business during the period of time at issue was purely speculative(see id.). We therefore modify the judgment by reducing the amount of restitutionto $5,915.07. Present—Scudder, P.J., Fahey, Peradotto, Carni and Valentino, JJ.