| People v Morrishill |
| 2015 NY Slip Op 03187 [127 AD3d 993] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David William Morrishill, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Edward E. Smith of counsel), forappellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County(Hinrichs, J.), rendered January 20, 2011, convicting him of criminal sale of a controlledsubstance in the second degree, upon his plea of guilty (Asher, J.), and imposingsentence, including restitution in the sum of $4,980.
Ordered that the judgment is modified, on the law, by vacating the restitution in thesum of $4,980; as so modified, the judgment is affirmed, and the matter is remitted to theSupreme Court, Suffolk County, for a hearing and new determination concerning theproper amount of restitution and the manner of payment thereof.
The defendant entered a plea agreement calling for a specified prison term andperiod of postrelease supervision, and an amount of restitution. The restitution amountrepresented the amount of "buy money" expended by the police in their purchases ofdrugs from the defendant (see Penal Law § 60.27 [9]). Nonetheless,at the sentencing proceeding, the defendant objected to the amount of restitution andasked for proof as to the proper amount.
Under Penal Law § 60.27 (9), a defendant may be ordered to payrestitution for funds used by law enforcement in the purchase of drugs, if certainprerequisites are met. Before a defendant may be directed to pay restitution, a hearingmust be held if either: (1) the defendant objects to the amount of restitution and therecord is insufficient to establish the proper amount; or (2) the defendant requests ahearing (see Penal Law § 60.27 [2]; People v Consalvo, 89NY2d 140, 145-146 [1996]; People v Ward, 103 AD3d 925, 925-926 [2013]). Thisprocedure must be followed even if the plea agreement contains a provision for a specificamount of restitution (see People v Consalvo, 89 NY2d at 145-146; People vWard, 103 AD3d at 926).
Here, the defendant objected to the amount of restitution (see People v Ward,103 AD3d at 926; cf. People vFinnegan, 112 AD3d 847, 847 [2013]). Moreover, the record was insufficient toestablish the proper amount of restitution (see People v Consalvo, 89 NY2d at145-146). Accordingly, the defendant was entitled to a hearing, and we therefore remitthe matter to the Supreme Court, Suffolk County, for a hearing and new determinationconcerning the proper amount [*2]of restitution and themanner of payment thereof. Balkin, J.P., Hall, Roman and Cohen, JJ., concur.