People v. Welsher

154 A.D.2d 915, 545 N.Y.S.2d 870, 1989 N.Y. App. Div. LEXIS 12917

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1989
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty to one count of attempted robbery, third degree. He was sentenced as a second felony offender to serve an indeterminate sentence of 1 Vi to 3 years and to make $900 restitution to the victim over a five-year period. Defendant’s sole claim on appeal is that the restitution provision of his sentence should be vacated because the court erred in ordering restitution without conducting a hearing to determine the amount.

Defendant is entitled to a hearing on the issue of the amount of restitution if the record before the sentencing court is insufficient to allow that court to make such a finding (see, People v Fuller, 57 NY2d 152, 156; People v Dixon, 134 AD2d 877, 878; People v Sommer, 105 AD2d 1052, 1053; People v Clougher, 95 AD2d 860). Furthermore, the court may not abdicate its responsibility to fix the amount of restitution to any other agency (People v Fuller, supra, at 158; People v Miller, 133 AD2d 784, lv denied 70 NY2d 934) or to the District Attorney (People v Dixon, supra, at 878) or base a finding solely upon the presentence report (see, People v Cheatum, 148 AD2d 986, lv denied 74 NY2d 662; People v Dixon, supra).

In this case a hearing was not necessary because the record was sufficient to allow the court to make a finding “as to the fruits of the offense” (Penal Law § 60.27 [2]). It is apparent that the court based its finding that the fruits of the crime amounted to $900 from the entire record, which included the victim’s sworn statement to this effect. (Appeal from judgment of Supreme Court, Monroe County, Doyle, J. — attempted robbery, third degree.) Present — Callahan, J. P., Boomer, Pine, Lawton and Davis, JJ.