People v. Kelsky

144 A.D.2d 386, 533 N.Y.S.2d 962, 1988 N.Y. App. Div. LEXIS 11221

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1988
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Belli, J.), rendered February 22, 1988, convicting him of attempted grand larceny in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed, and the case is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (5).

In view of the fact that the defendant abused his position as a hospital administrator to accept a personal favor from a vendor with the knowledge that the latter would make up for the cost at the hospital’s expense, the court properly sentenced the defendant to a brief period of incarceration as a condition of his probation. Mere speculation that due to his medical condition the defendant might suffer unspecified harm if incarcerated does not suffice to warrant a modification of the sentence imposed to only a term of probation (People v Cyr, 119 AD2d 901, lv denied 68 NY2d 756; cf., People v Notey, 72 AD2d 279).

Since the defendant’s admission during the course of the plea allocution provided an adequate basis upon which to calculate the hospital’s loss and set restitution, the sentencing court did not err in failing to conduct a restitution hearing (cf., People v Barnes, 135 AD2d 825, 826; People v Sommer, 105 AD2d 1052, 1053).

We have considered that defendant’s remaining contentions and find them to be without merit. Kunzeman, J. P., Weinstein, Rubin and Kooper, JJ., concur.