People v. Travis

64 A.D.3d 808, 882 N.Y.S.2d 530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 2009
• Status: Published

Opinions

Kavanagh, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered January 3, 2008, convicting defendant upon his plea of guilty of the crime of grand larceny in the third degree.

Defendant waived indictment, pleaded guilty to a superior court information charging him with grand larceny in the third degree and was sentenced as a second felony offender to a prison term of 3 to 6 years. Defendant waived his right to appeal and agreed to execute a confession of judgment in lieu of restitution. At the time of sentencing, a representative of the corporate victim failed to appear or otherwise provide County Court with a restitution figure. County Court proceeded to sentence defendant to the agreed-upon term, but left the issue of restitution “open” for two weeks. County Court thereafter entered a restitution order in the amount of $22,050, representing the principal sum of $21,000, together with the statutory surcharge. Defendant now appeals, asking that the matter be remitted for a restitution hearing. The People join in defendant’s request.

Preliminarily, as the plea agreement did not include the amount of restitution to be awarded, defendant may challenge the restitution order despite his waiver of the right to appeal (see People v McLean, 59 AD3d 859, 860 [2009]; People v Wilson, 59 AD3d 807 [2009]; compare People v Gilmour, 61 AD3d 1122 [2009]). Turning to the merits of his challenge, although there is no dispute that defendant was aware that restitution would be part of the negotiated sentence, the first notice that he received of the amount of restitution came from the restitution order, which, in turn, was based solely upon a terse letter from the victim’s corporation counsel setting forth the damages allegedly sustained. No detailed information was provided regarding the alleged loss or the manner in which it was computed, nor was defendant afforded any opportunity to contest the sum awarded. Under such circumstances, we agree with the parties that this matter must be remitted to County Court for an appropriate restitution hearing (see Penal Law § 60.27 [2]; People v McLean, 59 AD3d at 860).

However, to the extent that defendant further argues that the restitution order should have been vacated due to County Court’s failure to consider his ability to pay, we disagree. For the reasons set forth in People v Henry (64 AD3d 804 [2009] [decided herewith]), a defendant’s ability to pay is not a mandatory consideration when restitution is ordered in connection with a nonprobationary sentence that includes, as a significant component thereof, a period of incarceration (see Penal Law § 60.27 [1]; People v Holmes, 300 AD2d 1072, 1073 [2002]; People v Emmi, 254 AD2d 840, 840 [1998], lv denied 92 NY2d 949 [1998]; see also People v Jackson, 23 AD3d 1057 [2005], lv denied 6 NY3d 814 [2006]; compare Penal Law § 65.10 [2] [g]).

Peters, Lahtinen and Stein, JJ., concur.