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ALTHOUGH DEFENDANT’S GUILTY PLEA SATISFIED AN UNCHARGED BURGLARY, THE SENTENCING COURT SHOULD NOT HAVE ORDERED RESTITUTION FOR THE UNCHARGED BURGLARY.

The Third Department determined the sentencing court erred when it ordered restitution for an uncharged burglary (on December 18). Although defendant’s guilty plea was taken in satisfaction of the uncharged December 18 burglary, that burglary was never included in an accusatory instrument and was not shown to be part of the same criminal transaction to which defendant pled:

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Pursuant to Penal Law § 60.27, a trial court may order restitution arising from “the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense” (Penal Law § 60.27 [4] [a]). Defendant’s guilty plea pertained to the December 24, 2014 burglary of the warehouse, and satisfied uncharged burglaries from that warehouse on December 15 and 18, 2014. … After a hearing, County Court determined that there was insufficient evidence that defendant had committed the December 15 burglary but ordered restitution in the amount of $11,471 for the materials stolen in the December 18 burglary.

However, no proof was adduced at the hearing that the December 18 burglary was ever charged in an accusatory instrument and the People did not prove by a preponderance of the evidence that this burglary was part of “the same criminal transaction” as the December 24 crime of conviction … . To be part of the same criminal transaction, the conduct must be “either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” … . Here, the evidence established that there were three separate burglaries, each committed days apart in which distinct materials were stolen, and each was completed when the perpetrator left the premises with the stolen materials … . As such, the evidence established that the burglaries were separate “criminal transaction[s]” and did not demonstrate that they were “integral parts of a single criminal venture”” (CPL 40.10 [2] [a], [b]), as there was no proof that they “involve[d] planned, ongoing organized criminal activity, such as conspiracies, complex frauds or larcenies, or narcotics rings” … . Accordingly, Penal Law § 60.20 (4) (a) did not authorize restitution for the December 18 burglary, and the restitution order must be vacated … . People v Pixley, 2017 NY Slip Op 04173, 3rd Dept 5-25-17

 

CRIMINAL LAW (ALTHOUGH DEFENDANT’S GUILTY PLEA SATISFIED AN UNCHARGED BURGLARY, THE SENTENCING COURT SHOULD NOT HAVE ORDERED RESTITUTION FOR THE UNCHARGED BURGLARY)/RESTITUTION (CRIMINAL LAW, ALTHOUGH DEFENDANT’S GUILTY PLEA SATISFIED AN UNCHARGED BURGLARY, THE SENTENCING COURT SHOULD NOT HAVE ORDERED RESTITUTION FOR THE UNCHARGED BURGLARY)

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