People v. West

145 A.D.2d 980, 536 N.Y.S.2d 620, 1988 N.Y. App. Div. LEXIS 14078

Opinion

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Ontario County Court for further proceedings, in accordance with the following memorandum: The court erred in ordering defendant to pay restitution of $6,081.35 without conducting a hearing to determine the proper amount of restitution (see, Penal Law § 60.27 [2]; cf, CPL 400.30). Where the record is insufficient to support a finding as to the proper amount of restitution, "the court must conduct a hearing” (Penal Law § 60.27 [2]; People v Bentivegna, 145 AD2d 899; People v Millar, 144 AD2d 1032; People v Dixon, 134 AD2d 877, 878). " 'Because defendant was convicted on his plea of guilty, there was no proof developed as to the amount of loss sustained’ ” (People v Millar, supra, at 1032; People v Dixon, supra). Although the record is not clear, the court appears to have relied on a probation or presentence report in fixing the amount of restitution. Such reports do not provide a sufficient basis upon which to order restitution without a hearing (People v Millar, supra; People v Dixon, supra; People v Sommer, 105 AD2d 1052, 1053; People v Clougher, 95 AD2d 860). Defendant’s failure to request a hearing at the time of sentencing or object to the court’s summary imposition of a restitution condition does not relieve the court of its obligation to conduct a hearing sua sponte because of the " 'essential nature’ ” of defendant’s right to be sentenced as prescribed by law (People v Fuller, 57 NY2d 152, 156; People v Bentivegna, supra; People v Dixon, supra). (Appeal from judgment of Ontario County Court, Henry, J. — burglary, third degree, and other charges.) Present — Denman, J. P., Boomer, Balio, Lawton and Davis, JJ.