| People v Ulmer |
| 2018 NY Slip Op 02510 [160 AD3d 1138] |
| April 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Daniel N. Ulmer, Appellant. |
Linda M. Campbell, Syracuse, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), renderedJuly 25, 2016, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant waived indictment and was charged in a superior court information with burglaryin the second degree arising from a break-in at the home of his aunt and uncle and the theft oftwo flat screen television sets. In satisfaction thereof and of other outstanding charges, he pleadedguilty to attempted burglary in the second degree and was sentenced to a five-year period ofprobation. One of the conditions of his probation was that he pay restitution in the amount of$7,284.32 to his aunt and uncle. Defendant subsequently violated the conditions of his probation,but ultimately admitted to one probation violation that resulted in the revocation of his probation.In exchange for his admission, he was to be resentenced on the attempted burglary conviction totwo years in prison followed by three years of postrelease supervision. County Court granteddefendant a brief furlough prior to sentencing, but specifically advised him, among other things,that if he tested positive for drugs or failed to appear for sentencing, he would be resentenced toan enhanced sentence of four years in prison followed by three years of postrelease supervision.Defendant failed to appear for sentencing because he was hospitalized due to a drug overdose.Consequently, County Court imposed the enhanced sentence and also issued a restitution orderdirecting defendant to pay $722.20 to an individual who was neither defendant's aunt nor uncle.Defendant now appeals.
Defendant contends, as he did at sentencing, that County Court abused its discretion inimposing the enhanced sentence in light of his drug addiction and attempt to commit suicide by[*2]overdosing while on furlough. We are not persuaded, asdefendant was directly warned of the consequences of using drugs while on furlough, as well asof failing to appear for sentencing, and it is undisputed that he violated these conditions (see People v Straight, 106 AD3d1190, 1191-1192 [2013]; comparePeople v Criscitello, 123 AD3d 1235, 1236-1237 [2014]). Given his many priorconvictions and probation violations, we do not find any extraordinary circumstances or an abuseof discretion warranting a reduction of the enhanced sentence in the interest of justice,notwithstanding his drug addiction and most unfortunate suicide attempt (see People v Paneto, 112 AD3d1230, 1231-1232 [2013], lv denied 23 NY3d 1023 [2014]; People v Potter, 54 AD3d 444, 445[2008]; People v Walker, 30 AD3d823, 824 [2006]).
Defendant further contends that County Court erroneously directed him to pay restitution toan individual who was not a victim of the crime to which he pleaded guilty. Although this claimis also unpreserved due to defendant's failure to request a hearing or raise an objection atsentencing (see People v Wright,154 AD3d 1015, 1016 [2017], lv denied 30 NY3d 1065 [2017]; People v Davis, 150 AD3d 1329,1330 [2017]), we nevertheless exercise our discretion to take corrective action in the interest ofjustice under the circumstances presented (see People v Grumberg, 153 AD3d 1525, 1527 [2017]; People v Nesbitt, 144 AD3d 1329,1329-1330 [2016]). Clearly, the individual to whom restitution was awarded was not defendant'saunt or uncle or a victim of the attempted burglary. The People, however, point out that therestitution provisions of Penal Law § 60.27 extend to any offense "that is containedin any other accusatory instrument disposed of by any plea of guilty by the defendant to anoffense" (Penal Law § 60.27 [4] [a]). They assert that the restitution order related tothe victim of a previous felony conviction for which defendant received a conditional dischargeand that the disposition of the probation violation encompassed any potential violation of theconditional discharge. The record, however, does not support this conclusion. The details of theconditional discharge, the subject felony and the victim were not disclosed during theproceedings in which defendant admitted to the probation violation. Furthermore, there was nomention of any restitution to be paid to this victim. In view of the foregoing, restitution shouldnot have been ordered to be paid to this victim in connection with the disposition of the probationviolation (see People v Gardner, 129AD3d 1386, 1388 [2015]; People vMcLean, 59 AD3d 859 [2009]).
Lynch, J.P., Devine, Clark, Aarons and Rumsey, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by reversing so much thereof asordered restitution, and, as so modified, affirmed.