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Sentencing Court Could Amend Restitution Amount But First Must Give Defendant Opportunity to Withdraw Guilty Plea

The Third Department determined County Court had the authority to amend the amount of restitution initially ordered at sentencing.  However, the change required giving the defendant the right to withdraw the guilty plea:

Notably, “in the normal course of events, the People must ‘advise the court at or before the time of sentencing that the victim seeks restitution . . . and the amount of restitution . . . sought’ (Penal Law § 60.27 [1]), and the trial court must determine the amount of restitution at the time of sentencing” … .  Nevertheless, “the court’s continuing jurisdiction to impose restitution has been recognized where the claim for restitution is raised at or prior to sentencing and the modification or correction of the sentence occurs within a reasonable time thereafter” … .

Here, we do not find the delay between defendant’s September 2009 sentencing and the modification of the restitution order in September 2010 following a hearing unreasonable given the various factors presented by this case … .  “Nonetheless, [a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea” … .  Thus, in light of the fact that the amended restitution amount unquestionably exceeds the total amount to which defendant agreed at the time of her plea and she seeks, among other things, vacatur of that plea herein, we deem it appropriate to remit the matter for the purpose of allowing defendant the opportunity to either accept the enhanced restitution amount or withdraw her plea… . People v Mahar, 103960, 3rd Dept 9-26-13

 

Failure to Include Restitution in Plea Negotiations Precluded Imposing Restitution at Sentencing

The Second Department vacated defendant’s sentence because, although restitution was not part of the plea promise, restitution was imposed at sentencing:

At the sentencing proceeding, the defendant did not have a sufficient opportunity to object to the imposition of restitution. The court made a brief reference to “RJOs,” apparently referring to restitution judgment orders. After pronouncing the sentence, the court stated: “With respect to any and all surcharges, given the fact there’s significant restitution judgment order obligations here, I’m going to waive the surcharges.” Under these circumstances, the defendant’s contention will be addressed on the merits … .

Although a court is free to reserve the right to order restitution as part of a plea bargain, the plea minutes in this case do not indicate that the pleas of guilty were negotiated with terms that included restitution … . At sentencing, the defendant should have been “given an opportunity either to withdraw his plea[s] or to accept the enhanced sentence[s] that included both restitution and a prison sentence” …, or for the court to impose the sentences agreed upon at the plea proceedings. People v Pettress, 2013 NY Slip Op 05645, 2nd Dept 8-14-13

 

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Evidence Needed to Corroborate Accomplice Testimony and Evidence Admissible at Restitution Hearing Explained

In affirming the conviction, the Fourth Department explained the criteria for corroboration of accomplice testimony, and the admissible evidence in a restitution hearing:

“New York’s accomplice corroboration protection requires only enough nonaccomplice evidence to assure that the accomplices have offered credible probative evidence that connects the accomplice evidence to the defendant”…. Even the most “[s]eemingly insignificant matters may harmonize with the accomplice’s narrative so as to provide the necessary corroboration” (id. [internal quotation marks omitted]).    Here, defendant’s accomplice testified that he assisted defendant in burglarizing the victim’s home and stealing the victim’s car, and that testimony was corroborated by the testimony of other witnesses that defendant was seen driving the victim’s stolen car the day after the burglary.* * *

The victim testified at the restitution hearing and provided a detailed breakdown of the value of the stolen items as well as documents establishing the cost of replacing the ignition and locks on her vehicle, which was returned to her. In addition, the amount of restitution owed to the victim’s insurance company, which was financially harmed by reimbursing the victim for a portion of the cost of changing the ignition and locks on her vehicle, was supported by the claim it submitted to the Genesee County Probation Department. It is immaterial that an employee of the insurance company did not testify at the restitution hearing because “[a]ny relevant evidence, not legally privileged, may be received [at a restitution hearing] regardless of its admissibility under the exclusionary rules of evidence” (CPL 400.30 [4] …). People v Wilson, 275, 4th Dept 7-5-13

 

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Restitution Can Not Be Ordered When Not Addressed in Plea Agreement

The Second Department, in the interest of justice, determined the sentencing court should not have imposed restitution because restitution was not addressed in the plea agreement.  The matter was remitted for re-sentencing without restitution. People v Thompson, 2013 NY Slip Op 02770, 2nd Dept, 4-24-13

 

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Court’s Imposition of Restitution at Sentencing Required Reversal Because Restitution Was Not Part of Plea Agreement

The Second Department determined the trial court’s imposition of restitution at sentencing, where restitution was not part of the plea agreement, required that the defendant be given the opportunity to withdraw his plea or to accept the enhanced sentence:

Although a court is free to reserve the right to order restitution as part of a plea agreement, the plea minutes do not indicate that a plea of guilty was negotiated with terms that included restitution. Accordingly, at sentencing, the defendant should have been “given an opportunity either to withdraw his plea or to accept the enhanced sentence that included both restitution and a prison sentence … or for the court to impose the agreed-upon sentence.  People Poznanski, 2013 NY Slip Op 02272, 2008-06938, Ind No 2672/06, 2nd Dept 4-3-13

 

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