People v. Bernier

197 A.D.2d 882, 604 N.Y.S.2d 876, 1993 N.Y. App. Div. LEXIS 9288

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1993
• Status: Published

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Jefferson County Court for further proceedings in accordance with the following Memorandum: Upon her plea of guilty to one count of grand larceny in the second degree, defendant was sentenced to a term of probation of five years and was ordered to pay restitution in an amount not to exceed $22,000, to be ascertained by the Departments of Probation and Social Services. Despite her failure to request a hearing or object to the restitution imposed, defendant has not forfeited her right of review because of the "essential nature” of the right to be sentenced in accordance with the law (People v Fuller, 57 NY2d 152, 156). County Court erred in failing to conduct a hearing to determine the amount of restitution (see, Penal Law § 60.27 [2]), and improperly delegated the task of determining that amount to the Departments of Probation and Social Services (see, People v Fuller, supra, at 158-159; People v West, 145 AD2d 980; People v Bentivegna, 145 AD2d 899). Therefore, we modify the judgment by vacating the amount of restitution and remit the matter for a hearing to determine the amount of restitution to be paid by defendant (see, People v Beaudoin, 195 AD2d 996). (Appeal from Judgment of Jefferson County Court, Clary, J.—Grand Larceny, 2nd Degree.) Present—Callahan, J. P., Green, Fallon, Boomer and Davis, JJ.