People v. Tierno

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1999
• Status: Published

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.