DEFENDANT WAS CONVICTED OF GRAND LARCENY BASED UPON OVERCHARGING HER EMPLOYER; THE RESTITUTION SHOULD NOT HAVE INCLUDED THE LABOR COSTS INCURRED BY THE EMPLOYER FOR INVESTIGATING THE CRIME OR THE TRAVEL COSTS FOR WITNESSES TO TESTIFY AT TRIAL; THE FOURTH DEPARTMENT REFUSED TO FOLLOW A THIRD DEPARTMENT DECISION RE: TRAVEL EXPENSES AND LOST WORK ASSOCIATED WITH TESTIFYING AT TRIAL (FOURTH DEPT).

The Fourth Department determined restitution in this grand larceny case should not include the victim’s (HomeCare”s) labor costs associated with investigating the defendant’s theft or the travel expense of witnesses who testified at trial:

Defendant was charged with grand larceny … after HomeCare conducted an audit of her time sheets and mileage vouchers and determined that she had received more than $14,000 in overpayments during the course of her employment as a registered nurse. …  … County Court … determined that HomeCare and its insurance carrier were entitled to restitution in the amount of $24,469.10 …: $14,207.67 for overpayments made to defendant in wages and mileage reimbursements … , $9,658.02 to HomeCare for labor costs incurred with respect to its employees who investigated defendant’s crime and appeared at her trial; and $603.41 to HomeCare for mileage, meal and hotel expenses incurred by its employees who appeared at trial.

We conclude that the labor costs allegedly incurred by HomeCare for employees who investigated the crime are not “actual out-of-pocket” losses within the meaning of Penal Law § 60.27. … With respect to the travel expenses incurred by HomeCare employees who appeared at defendant’s trial, we note that … section 60.27 does not impose a duty on the defendant to pay for the costs associated therewith inasmuch as such expenses are not directly caused by the defendant’s crime. …

The People rely on People v Denno (56 AD3d 902, 903-904 …), where the Third Department determined that the sentencing court did not improvidently exercise its discretion when it ordered that the defendant pay reparations to the victim’s mother to cover the expenses of traveling by airplane from Florida to New York to speak at sentencing, and to cover the lost wages caused by missing four days of work. … [W]e do not follow Denno because we do not read Penal Law § 60.27 as requiring a criminal defendant to pay for expenses incurred by the victim to testify at trial or investigatory costs incurred by the victim. People v Case, 2023 NY Slip Op 01438, Fourth Dept 3-17-23

Practice Point: Here the defendant was convicted of grand larceny for overcharging her employer. The restitution should not have included the employer’s labor costs associated with investigating the crime or the travel expenses for witnesses who testified at trial. Re: the costs incurred by witnesses who testified at trial, the Fourth Department refused to follow the Third Department.