People v. Massagli

Appellate Division of the Supreme Court of New York

People v. Massagli

51 A.D.3d 486, 857 N.Y.S.2d 556

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 8, 2008

StatusPublished

Cited by1 cases

This text of 51 A.D.3d 486 (People v. Massagli) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Massagli, 51 A.D.3d 486, 857 N.Y.S.2d 556 (N.Y. Ct. App. 2008).

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Opinion

Judgment of resentence, Supreme Court, Bronx County (Joseph Fisch, J.), rendered July 8, 2004, convicting defendant, upon his plea of guilty, of violation of probation, and resentencing him to a term of 5 to 15 years, unanimously modified, on the law, to the extent of vacating the restitution order and remanding for a hearing on restitution, and otherwise affirmed.

Although defendant agreed to make restitution of the amount in question, he made no statement to support the amount of restitution ordered by the court and the record is bereft of any basis for the award (see People v Consalvo, 89 NY2d 140 [1996]). Furthermore, this defect in the sentence presents a question of law notwithstanding defendant’s failure to request a restitution hearing (People v Fuller, 57 NY2d 152, 156 [1982]; People v White, 282 AD2d 396, 397 [2001]).

However, we find nothing unlawful about the violation of probation adjudication and the prison sentence. While the record does not establish that defendant made a valid waiver of his right to appeal from that sentence on the ground of excessiveness, we perceive no basis for reducing it. Concur—Tom, J.P., Williams, Catterson and Acosta, JJ.

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Judgment of resentence, Supreme Court, Bronx County (Joseph Fisch, J.), rendered July 8, 2004, convicting defendant, upon his plea of guilty, of violation of probation, and resentencing him to a term of 5 to 15 years, unanimously modified, on the law, to the extent of vacating the restitution order and remanding for a hearing on restitution, and otherwise affirmed.

Although defendant agreed to make restitution of the amount in question, he made no statement to support the amount of restitution ordered by the court and the record is bereft of any basis for the award (see People v Consalvo, 89 NY2d 140 [1996]). Furthermore, this defect in the sentence presents a question of law notwithstanding defendant’s failure to request a restitution hearing (People v Fuller, 57 NY2d 152, 156 [1982]; People v White, 282 AD2d 396, 397 [2001]).

However, we find nothing unlawful about the violation of probation adjudication and the prison sentence. While the record does not establish that defendant made a valid waiver of his right to appeal from that sentence on the ground of excessiveness, we perceive no basis for reducing it. Concur—Tom, J.P., Williams, Catterson and Acosta, JJ.

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Bluebook (online)

51 A.D.3d 486, 857 N.Y.S.2d 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-massagli-nyappdiv-2008.

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