| People v Robinson |
| 2015 NY Slip Op 08469 [133 AD3d 1043] |
| November 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAdam J. Robinson, Appellant. |
Torrance L. Schmitz, Vestal, for appellant.
Gwen Wilkinson, District Attorney, Ithaca (Wendy L. Franklin of counsel), forrespondent.
Lahtinen, J.P. Appeal from an order of the County Court of Tompkins County(Ames, J.), entered October 24, 2013, which set the amount of restitution owed bydefendant.
Defendant pleaded guilty to criminal contempt in the first degree stemming from hisviolation of an order of protection entered against him and waived his right to appeal.Defendant was sentenced in accordance with the plea agreement to six months in jail andfive years of probation. Defendant disputed the request for restitution and, following ahearing, County Court ordered defendant to pay restitution in the amount of $2,575.20.Defendant appeals from the order of restitution.
We affirm. Initially, we note that, although the plea agreement contemplatedrestitution, defendant's challenge to the restitution is not precluded by the waiver of theright to appeal inasmuch as the amount was not specified until after a hearing (see People v Gardner, 129AD3d 1386, 1386 [2015]; People v Spears, 78 AD3d 1380, 1380-1381 [2010]).Furthermore, we are unpersuaded by defendant's contention that County Court abused itsdiscretion in denying defense counsel's request for an adjournment inasmuch as therecord establishes that defendant failed to appear at the hearing or maintain contact withdefense counsel, despite being informed of the hearing date (see People v Ruffin, 56 AD3d892, 893 [2008]; People v Herring, 227 AD2d 658, 660 [1996], lvdenied 88 NY2d 986 [1996]).
[*2] Turning to the merits, we find no reason to disturb the amount of restitution ordered. It isthe People's burden to establish, by a preponderance of the evidence, the victim'sout-of-pocket loss caused by the offense (see Penal Law § 60.27[2]; CPL 400.30 [4]; People vTzitzikalakis, 8 NY3d 217, 222 [2007]). Here, the employer testified that thevictim was discharged from her employment because of the volatile situations caused bydefendant, which resulted in police presence at her place of employment. Absent suchincidents, the victim's employment would not have been terminated. Furthermore, therecord establishes that the victim was hired to work 29 hours per week at a rate of $7.40per hour and that, following her discharge, she was unable, despite her efforts, to findemployment for 12 weeks. In view of the foregoing, we find no reason to disturb CountyCourt's finding that the victim's lost wages were a direct consequence of defendant'sconduct and that the restitution owed to the victim was reasonable (see People v Stevens, 84 AD3d1424, 1427 [2011], lv denied 17 NY3d 822 [2011]; People v Periard, 15 AD3d693, 694 [2005]).
McCarthy, Lynch and Devine, JJ., concur. Ordered that the order is affirmed.