RESTITUTION IN EXCESS OF THE STATUTORY CAP FOR LOST WAGES WAS IMPROPERLY AWARDED BECAUSE “LOST WAGES” DOES NOT FIT ANY OF THE EXCEPTIONS TO THE CAP RESTRICTION (FOURTH DEPT).

The Fourth Department, modifying County Court, determined the restitution amount which exceeded the statutory cap did not fit into any of the statutory exceptions to the cap restriction. The victim was improperly awarded an amount for lost wages:

… [T]he court erred in imposing restitution and reparation in excess of the statutory cap for the second victim’s past lost earnings because, under the plain meaning of the statute, that form of loss does not fall within the exception to the statutory cap pursuant to Penal Law § 60.27 (5) (b) … . In particular, contrary to the court’s determination, inasmuch as past lost earnings are wages, salary, or other income that the second victim could have, but did not, earn (see Black’s Law Dictionary [11th ed 2019], lost earnings), the excess amount ordered as restitution and reparation for that loss does not constitute reimbursement for “the return of the [second] victim’s property” or equivalent thereof (§ 60.27 [5] [b] …). People v Witherow, 2022 NY Slip Op 01691, Fourth Dept 3-11-22

Practice Point: Restitution for lost wages was improperly awarded because “lost wages” does not fit any of the statutory exceptions to the restitution-cap restriction.