People v. Jones

149 A.D.2d 928, 543 N.Y.S.2d 340, 1989 N.Y. App. Div. LEXIS 5935

Opinion

— Judgment unanimously modified on the law and as modified affirmed and matter remitted to Erie County Court for further proceedings, all in accordance with the following memorandum: The court erred in ordering restitution without making "a finding as to the fruits of the offense or the loss or damage caused by the offense” (Penal Law § 60.27 [2]; see also, Penal Law § 65.10 [2] [g]). We cannot determine on this record whether a hearing is required. Upon remand, the trial court must determine whether the record contains sufficient evidence to support an order of restitution. If the record is deficient in this regard, or upon request of defendant, the trial court must conduct a hearing upon the issue (see, Penal Law § 60.27 [2]; People v Fuller, 57 NY2d 152, 156; People v Clougher, 95 AD2d 860). (Appeal from judgment of Erie County Court, McCarthy, J. — grand larceny, third degree.) Present—Callahan, J. P., Doerr, Boomer, Pine and Davis, JJ.