You are here: / / DEFENDANT SHOULD NOT HAVE BEEN RESENTENCED ON THE ORIGINAL CHARGE PURSUANT...
,

DEFENDANT SHOULD NOT HAVE BEEN RESENTENCED ON THE ORIGINAL CHARGE PURSUANT TO CPL 420.10 FOR FAILURE TO PAY RESTITUTION; THE JUDGE DID NOT MAKE THE STATUTORILY REQUIRED FINDINGS FOR RESENTENCING UNDER THAT STATUTE; RESENTENCE VACATED (THIRD DEPT).

The Third Department, reversing County Court, vacated defendant’s resentence. Once a defendant is sentenced, the court no longer has jurisdiction over the matter. Here, after it was determined defendant had willfully failed to pay the ordered restitution, defendant was resentenced to prison on the original conviction. By statute a defendant may be resentenced for failure pay restitution, but only after the court makes a finding the defendant is unable to pay due to indigency. No such finding was made here:

CPL 420.10 (3) provides that, when a court imposes restitution as part of a defendant’s sentence, the court can imprison the defendant if he or she fails to pay restitution; such provision authorizing imprisonment for failure to pay restitution can be set forth at the time of sentencing or may be added “at any later date while the . . . restitution . . . or any part thereof remains unpaid” (CPL 420.10 [3]). Although County Court therefore retained jurisdiction under the auspices of this statute, it erred in resentencing defendant pursuant to CPL 420.10 (5). As relevant here, CPL 420.10 (5) provides that, “[i]n any case where the defendant is unable to pay a fine, restitution or reparation imposed by the court, he [or she] may at any time apply to the court for resentence.” Resentencing is authorized “if the court is satisfied that the defendant is unable to pay the fine, restitution or reparation” (CPL 420.10 [5]). Here, there was no finding by the court that defendant was unable to pay the restitution due to indigency … . … [W]e refuse to equate defendant’s acceptance of the global agreement [agreeing to 81/2 to 25 years in prison including time served] with the application necessary to resentence him under CPL 420.10 (5) … . County Court could have sentenced defendant to a year in prison for his failure to pay under CPL 420.10 (3) and (4), but it did not. As it erred in utilizing CPL 420.10 (5), the resentence must be vacated. People v Marone, 2022 NY Slip Op 01070, Third Dept 2-17-22

 

You might also like
PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENDANT’S VOCATIONAL REHABILITATION EXPERT.
THE SUPERIOR COURT INFORMATION (SCI) DID NOT INCLUDE THE TIME OF THE OFFENSE AND WAS THEREFORE JURISDICTIONALLY DEFECTIVE (THIRD DEPT).
THE HEARSAY MISBEHAVIOR REPORT, UNSUPPORTED BY ANY INVESTIGATION, DID NOT CONSTITUTE SUBSTANTIAL EVIDENCE OF PETITIONER’S GUILT; DETERMINATION ANNULLED (THIRD DEPT). ​
Penalty of Reasonable Attorney’s Fees Properly Assessed Against Claimant’s Attorney for Making Baseless Requests for a Change of Venue
Carrier’s Waiver of Lien on Third-Party Settlement Is Not “Compensation” Upon Which an Award of Attorneys Fees Can Be Based
REPORT OF INADEQUATE GUARDIANSHIP MAINTAINED BY THE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT SHOULD HAVE BEEN AMENDED TO BE UNFOUNDED AND EXPUNGED.
Reimbursement Cuts for Profit-Making Nursing Homes Did Not Violate Takings or Equal Protection Clauses
QUESTION OF FACT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR PLAINTIFF’S COLLIDING WITH THE REAR OF DEFENDANT’S CAR 3RD DEPT.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE 3RD DEPARTMENT, JOINING THE 2ND, HOLDS THAT A DEFENDANT HAS A RIGHT TO EFFECTIVE... ALLOWING THE PEOPLE’S INVESTIGATOR TO GO INTO THE JURY ROOM DURING DELIBERATIONS...