You are here: / / THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE...
, , ,

THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE RESTITUTION TO THE PROSECUTOR, MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, remitting the matter for a restitution hearing despite defendant’s failure to preserve the error, determined the record was insufficient to support the ordered restitution. The judge merely accepted the People’s restitution order, thereby improperly delegating the court’s role to the prosecutor:

… [I]t appears County Court impermissibly delegated its authority to the People to determine the amount of restitution owed and that said amount has no factual predicate in the record before us. “Whenever the court requires restitution . . . to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim[s] caused by the offense. In making this finding, the court must consider any victim impact statement provided to the court. If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue” (Penal Law § 60.27 [2] …). At the time of sentencing, the People noted that they had submitted a restitution order for the court to sign[*2]. Seemingly reading from that order, the court ordered defendant to pay restitution in the amount of $773, plus a five percent surcharge in the amount of $38.65, for a total sum of $811.65. The restitution order provided to this Court is not accompanied by any documentation, and neither the presentence report nor the victims’ impact statements at sentencing addressed pecuniary losses. Although defendant’s failure to object at the time of sentencing renders his restitution arguments unpreserved … , as the record before us does not include any proof to substantiate the amount of restitution ordered, we find it appropriate to exercise our discretion in the interest of justice and remit for the sole purpose of a restitution hearing … . People v Lester, 2024 NY Slip Op 05848, Third Dept 11-21-24

Practice Point: It is the judge, not the prosecutor, who makes a restitution determination, which must be supported by the record.

 

You might also like
Property Purchased by Husband Upon Which a “Shell” of a House Was Constructed Prior to Marriage Should Not Have Been Deemed Marital Property/Husband’s Failure to Affirmatively Prove What Portion of His Savings Account Was Separate Property Justified Dividing It Equally/Wife’s Failure to Prove How She Contributed to the Appreciation of the Marital Residence Precluded the Award of Any Appreciation in Value to Her
PLAINTIFF’S DAUGHTER DIED AFTER THE LAWSUIT HAD BEGUN, MOTION TO AMEND THE COMPLAINT TO ADD A CAUSE OF ACTION FOR WRONGFUL DEATH PROPERLY GRANTED, NO MEDICAL PROOF OF A CAUSAL CONNECTION BETWEEN THE DEATH AND THE ALLEGATIONS IN THE COMPLAINT REQUIRED (THIRD DEPT).
Village’s Opting to Remove Petitioner’s Land from the Land Available for Purchase by New York City to Maintain the City’s Drinking-Water Watershed Was Not a Regulatory Taking
BECAUSE THE INITIAL USE OF THE ROADWAY WAS PERMISSIVE, AND THERE WAS NO HOSTILE USE FOR THE REQUIRED TEN YEARS, THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE NOT MET; HOWEVER BECAUSE THE INITIAL USE WAS PERMISSIVE AND CONTINUED FOR 50 YEARS, THE CRITERIA FOR AN EASEMENT BY ESTOPPEL WERE MET (THIRD DEPT).
Photo Array Unduly Suggestive—Proof Burdens Explained
PLAINTIFF RADIATION ONCOLOGIST, THE SOLE SHAREHOLDER IN PLANTIFF PROFESSIONAL SERVICE CORPORATION, WHICH PAID PLAINTIFF ONCOLOGIST’S SALARY, SUCCESSFULLY SUED THE HOSPITAL WHICH EMPLOYED HIM FOR BREACH OF CONTRACT; THE COURT, IN A MATTER OF FIRST IMPRESSION, HELD THAT PLAINTIFF’S SALARY WAS NOT A CORPORATE EXPENSE AND THEREFORE WAS RECOVERABLE AS LOST PROFITS IN THE BREACH OF CONTRACT ACTION (THIRD DEPT).
ALTHOUGH CONTRACTING COVID-19 IS COMPENSABLE UNDER WORKERS’ COMPENSATION, HERE THE PROOF THAT CLAIMANT CONTRACTED COVID-19 BECAUSE OF WORKPLACE EXPOSURE WAS INSUFFICIENT (THIRD DEPT). ​
DEFENDANT’S FOR CAUSE CHALLENGE TO A JUROR IN THIS ARSON AND ANIMAL TORTURE CASE SHOULD HAVE BEEN GRANTED; THE JUROR EXPRESSED A HIGHLY EMOTIONAL RESPONSE TO INJURY TO ANIMALS AND THE COURT NEVER SPECIFICALLY ASKED IF SHOULD COULD BE FAIR AND IMPARTIAL (THIRD 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 PEOPLE’S FAILURE TO FILE A SECOND FELONY OFFENDER STATEMENT RENDERED... THERE WAS NO PROOF THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT IN THE...