Desrosiers v. Perry Ellis Menswear, LLCDesrosiers v. Perry Ellis Menswear, LLC
Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered December 22, 2011, convicting defendant, upon his plea of guilty, of possessing or transporting for the purpose of sale more than 30,000 unstamped cigarettes, and sentencing him to a term of 2 to 6 years, and ordering him to pay $3,326,700 in restitution, unanimously modified, on the law, to the extent of vacating the restitution order, and remanding for a hearing on restitution, and otherwise affirmed.
The record fails to support the People‘s argument that the court imposed a fine rather than restitution. Defendant agreed to make restitution to the Department of Taxation and Finance of the amount in question, but he made no statement to support that amount, as he only admitted in his plea allocution to evading $809,766 in taxes, and the record contains no basis for the award (see People v Consalvo, 89 NY2d 140 [1996]; People v Massagli, 51 AD3d 486 [1st Dept 2008]). This issue is nonwaivable, and it does not require preservation (id.). Concur—Friedman, J.P., Acosta, Moskowitz, Kapnick and Gesmer, JJ.