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Court Erred In Failing to Hold a Restitution Hearing—No Support In Record for Amount Imposed

The Third Department determined County Court erred by imposing $100,000 restitution without a hearing.  The People had determined the $100,000 figure was excessive and had requested restitution in the approximate amount of $32,000:

….[W]e agree with defendant that County Court erred in ordering restitution in the amount of $100,000 without a hearing. By statute, when a court requires restitution, it must make a finding as to the actual amount of loss and, “[i]f the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing” (Penal Law § 60.27 [2]…). Defendant sufficiently preserved this challenge to the increased amount of restitution, in that defense counsel and the People questioned it at sentencing … . Upon review, we find that there is no evidence in the record to support the court’s imposition of $100,000 in restitution. To the contrary, at sentencing the People characterized such figure as “excessive,” stated that they “lacked sufficient documentation and proof” to support that amount, and proffered evidence supporting restitution in the amount of $32,240, a figure to which the victim, the court and defendant had all agreed. Further, there are statutory limits on the amount of restitution, which may be exceeded, as relevant here, provided “‘the amount in excess [is] limited to the return of the victim’s property, including money, or the equivalent value thereof'” … . Accordingly, the matter must be remitted for a restitution hearing or a redetermination of restitution consistent with the plea agreement. Given that “[a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea” …, under the circumstances here, upon remittal, defendant must be afforded an opportunity to withdraw his guilty plea if a hearing is held and the amount of restitution imposed exceeds the originally agreed upon amount, i.e., $32,240. People v Pleasant, 2014 NY Slip Op 04981, 3rd Dept 7-3-14

 

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