People v. Tierno

261 A.D.2d 895, 690 N.Y.S.2d 800, 1999 N.Y. App. Div. LEXIS 4942

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of grand larceny in the third degree (Penal Law § 155.35). County Court erred in ordering defendant to pay restitution in the amount of $152,062.94 without holding a hearing on that issue. Defendant made no statement at the plea proceeding or at sentencing to support the amount of restitution ordered by the court (see, People v Consalvo, 89 NY2d 140, 144-145; People v Barnett, 237 AD2d 917, 918, Iv denied 90 NY2d 855). The court improperly relied on amounts recited in the presentence report (see, People v Bernier, 197 AD2d 882; People v Millar, 144 AD2d 1032, 1032-1033). That document does not contain sufficient evidence to support “a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense” (Penal Law § 60.27 [2]; see, People v Mangan, 258 AD2d 819; People v Lynch, 255 AD2d 1001; People v Swanson, 244 AD2d 945, Iv denied 91 NY2d 898). Thus, we modify the judgment by vacating the amount of restitution, and we remit the matter to Onondaga County Court for a hearing to determine the amount of restitution. (Appeal from Judgment of Onondaga County Court, Burke, J. — Grand Larceny, 3rd Degree.) Present — Denman, P. J., Hayes, Wisner, Hurlbutt and Callahan, JJ.