People v. Frisco

633 N.Y.S.2d 422 | N.Y. App. Div. | 1995

—Appeal from a judgment of the County Court of St. Lawrence County (Nicandri, J.), rendered December 19,1994, convicting defendant upon his plea of guilty of the crime of offering a false instrument for filing in the first degree.

In satisfaction of a superior court information, defendant pleaded guilty to the crime of offering a false instrument for filing in the first degree. He was sentenced to an intermittent term of 30 days in jail to be served on weekends and was ordered to pay restitution in the amount $6,132, $3,132 of which was reduced to a civil judgment in favor of the St. Lawrence County Department of Social Services and $3,000 of which was part of a three-year conditional discharge. In addition, County Court imposed a surcharge of $300. Defendant contends that because County Court failed to conduct a hearing on restitution and improperly delegated to the Probation Department the responsibility of setting the amount of restitution, his sentence should be vacated and the matter remitted to County Court. Although we agree with defendant that County Court should have conducted a hearing to determine the appropriate amount of restitution, the manner of payment and defendant’s financial ability to pay the same and should not have relied exclusively upon information supplied by the Probation Department (see, Penal Law § 60.27 [2]; People v Fuller, 57 NY2d 152; People v Monette, 199 AD2d 589; People v Robinson, 174 AD2d 779, 780), we do not find this to be a sufficient reason to vacate the sentence in its entirety. Rather, under the circumstances presented, we find that County Court’s award of restitution should be vacated and the matter remitted to County Court for a hearing to properly determine all issues related to restitution.

Cardona, P. J., Mikoll, White, Casey and Spain, JJ., concur. Ordered that the judgment is modified, on the law, by vacating so much thereof as ordered restitution; matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court’s decision, and, as so modified, affirmed.