| People v Pleasant |
| 2014 NY Slip Op 04981 [119 AD3d 984] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vDaniel Pleasant, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered October 2, 2012, convicting defendant upon his plea of guilty of the crimeof burglary in the second degree.
Following his arrest and indictment on three counts of burglary in the second degree,defendant engaged in plea negotiations that culminated in an offer to enter a guilty pleato one count of the indictment in exchange for a prison sentence of seven years followedby five years of postrelease supervision and the payment of restitution. During the pleahearing, the People conceded that restitution in the amount of $100,000 as requested byone of the victims was "excessive" and proffered an itemized list supporting $32,240 inrestitution, based upon the preplea investigation. County Court agreed to order restitutionin that amount and, based upon that representation, defendant thereafter pleaded guilty.At sentencing, the People reiterated that $32,240 was the exact amount of the itemizedrestitution and that the victim was in agreement with this amount. However, following anin-court statement by the victim, the court stated that it was going to order $100,000 inrestitution, indicating that defendant could request a restitution hearing if he so desired.Prior to adjourning to allow defendant to confer with counsel about whether to accept theenhanced restitution amount or withdraw his plea, the court warned defendant that itbelieved that a prison sentence of "15 [years] is more appropriate." Defendant ultimatelywent forward with sentencing and the court imposed the increased restitution amount.Defendant now appeals.
[*2] Initially, weare unpersuaded by defendant's claim that the prison term imposed was harsh andexcessive. Defendant bargained for the sentence and, although longer than the allowableminimum, it was far less than the maximum potential sentence of 15 years, and defendantcould have received consecutive sentences if convicted on all three counts of theindictment (see People vJones, 114 AD3d 1080, 1082 [2014]; People v Sparks, 105 AD3d 1073, 1074-1075 [2013], lvdenied 21 NY3d 1003 [2013]).
However, we agree with defendant that County Court erred in ordering restitution inthe amount of $100,000 without a hearing. By statute, when a court requires restitution, itmust make a finding as to the actual amount of loss and, "[i]f the record does not containsufficient evidence to support such finding or upon request by the defendant, the courtmust conduct a hearing" (Penal Law § 60.27 [2]; see People vHorne, 97 NY2d 404, 410 [2002]; People v Kim, 91 NY2d 407, 410 [1998];People v Stevens, 80 AD3d791, 792 [2011], lv denied 16 NY3d 900 [2011]). Defendant sufficientlypreserved this challenge to the increased amount of restitution, in that defense counseland the People questioned it at sentencing (see People v Horne, 97 NY2d at 414n 3; People v Stevens, 80 AD3d at 792). Upon review, we find that there is noevidence in the record to support the court's imposition of $100,000 in restitution. To thecontrary, at sentencing the People characterized such figure as "excessive," stated thatthey "lacked sufficient documentation and proof" to support that amount, and profferedevidence supporting restitution in the amount of $32,240, a figure to which the victim,the court and defendant had all agreed. Further, there are statutory limits on the amountof restitution, which may be exceeded, as relevant here, provided " 'the amount inexcess [is] limited to the return of the victim's property, including money, or theequivalent value thereof' " (People v Fancher, 116 AD3d 1084, 1089 [2014], quotingPenal Law § 60.27 [5] [b]). Accordingly, the matter must be remitted for arestitution hearing or a redetermination of restitution consistent with the plea agreement.Given that "[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 vNaumowicz, 76 AD3d 747, 750 [2010] [internal quotation marks and citationomitted]; accord People vMahar, 109 AD3d 1047, 1048-1049 [2013]), under the circumstances here,upon remittal, defendant must be afforded an opportunity to withdraw his guilty plea if ahearing is held and the amount of restitution imposed exceeds the originally agreed uponamount, i.e., $32,240. In light of this holding, defendant's remaining contention has beenrendered moot.
Stein, J.P., McCarthy, Egan Jr. and Clark, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing so much thereof as ordered restitution; matter remittedto the County Court of Ulster County for further proceedings not inconsistent with thisCourt's decision; and, as so modified, affirmed.