| People v Skerritt |
| 2015 NY Slip Op 03882 [128 AD3d 1110] |
| May 7, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPatricia E. Skerritt, Appellant. |
David E. Woodin, Catskill, for appellant.
Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Greene County (Tailleur,J.), rendered July 12, 2013, convicting defendant upon her plea of guilty of the crime ofburglary in the second degree.
Defendant was charged in an indictment with one count of burglary in the seconddegree, arising out of a February 1, 2012 incident wherein she and an accomplice brokeinto a residence with larcenous intent. She pleaded guilty as charged and waived her rightto appeal upon the understanding that, while she would not be prosecuted for anyadditional burglaries that she admitted to committing, she would be obliged to pay anyrestitution owed as a result of them. Defendant thereafter entered into a stipulation thatdid not require restitution for the offense that she had pleaded guilty to, but did commither to pay restitution for two additional burglaries. County Court sentenced her to aprison term of five years to be followed by postrelease supervision of five years, andordered her to pay restitution in the amount of $30,467.48. Defendant now appeals,asserting that the award of restitution was illegal.
Initially, defendant is challenging the legality of a component of her sentence, anargument that is not barred by either her consent to the amount of restitution imposed orher appeal waiver (see People vPump, 67 AD3d 1041, 1042 [2009], lv denied 13 NY3d 941 [2010]; People v Casiano, 8 AD3d761, 762 [2004]). As to the merits, Penal Law § 60.27 permits a trialcourt to require restitution arising from "the offense for which a defendant wasconvicted, as well [*2]as any other offense that is part ofthe same criminal transaction or that is contained in any other accusatory instrumentdisposed of by any plea of guilty by the defendant to an offense" (Penal Law§ 60.27 [4] [a]; see People v Horne, 97 NY2d 404, 412 [2002]; People v Diallo, 88 AD3d1152, 1154 [2011], lv denied 18 NY3d 993 [2012]). The sole accusatoryinstrument here was the one-count indictment to which defendant pleaded guilty, andthere is no dispute that restitution was ordered for crimes bearing no connection to theburglary for which defendant was convicted (compare People v Palella, 148AD2d 838, 838-839 [1989], lv denied 74 NY2d 795 [1989]; People vPrewett, 126 AD2d 86, 89-90 [1987], lv dismissed 70 NY2d 693 [1987]).The People thus concede, and we agree, that the restitution portion of defendant'ssentence must be vacated (see People v Casiano, 8 AD3d at 762-763; Peoplev Miller, 251 AD2d 747, 748 [1998]). Inasmuch as the parties are in agreement thatfurther proceedings are unnecessary, we perceive no need to remit this matter to CountyCourt (see CPL 470.20; People v LaSalle, 95 NY2d 827, 829 [2000];cf. People v Casiano, 8 AD3d at 762-763).
Peters, P.J., Lahtinen and Rose, JJ., concur. Ordered that the judgment is modified,on the law, by reversing so much thereof as directed defendant to pay restitution in theamount of $30,467.48, and, as so modified, affirmed.