Thе PEOPLE OF THE STATE OF NEW YORK, Respondent, v FRANCIS J. PELKEY, Appellant.
[879 NYS2d 842]
Judgment rendered May 21, 2008
Defendant stole his father-in-law‘s1 identity and used it to procure several loans. He thereafter pleaded guilty to identity theft in the first degree in satisfaction of a superior court information (hereinafter SCI) charging him with that crime and the crime of grand larceny in the third degree. The plea was made in exchange for a prison sentence of 2 to 4 years plus restitution. Defendant fled the jurisdiction prior to sentencing and was found in Utah, where he was arrested pursuant to a warrant issued as a result of his failure to appear at sentencing. Prior to leaving the state, defendant stole another person‘s identity to obtain money to fund his departure. In connection therewith, defendant pleaded guilty to each count of a 10-count indictment for which he received a prison sentence of 3 1/2 to 7 years on each count to run concurrently with each other but consecutive to the sentence imposed for the conviction of the crime in the SCI,2 plus restitution in an amount to be determined by the Clinton County Probation Department. He also received the People‘s agreement to forgo pursuit of federal charges against him or his wife, who arguably aided him in fleeing from New York. Defendant was sentenced, as a second felony offendеr, in accordance with his agreements and restitution was set without a hearing in the total amount of $81,468.52, which included extradition charges of $1,956.98 inсurred by the Clinton County District Attorney‘s office. Defendant now appeals.
We reject defendant‘s contention that he was entitled to a hеaring on his postsentencing motion to withdraw his guilty pleas. Defendant, while represented by counsel with whom he had expressed his satisfaction, made a detailed allocution to the crimes of which he was convicted and stated that his pleas were not coercеd. Defendant‘s subsequent claims that he felt coerced by the People‘s threats to prosecute his wife are unavailing, as “[t]he prоsecutor is free to dictate the terms under which a plea will be accepted” (People v Eaddy, 200 AD2d 896, 897 [1994], lv
Nor do we discern any error in County Court‘s determination that defendant was subjeсt to a predicate felony offense. The People established “beyond a reasonable doubt the existence of [a] рrevious felony conviction” (People v Harris, 61 NY2d 9, 15 [1983]), thus shifting the burden to defendant to specifically allege and prove facts demonstrating that the prior felony conviction was unconstitutionally obtained (see
We agree, however, with defendant‘s contention that the award of restitution was contrary to law.3 First, County Court improperly relied entirely on the report of the Probation Department to ascertain the amоunt of restitution. In making a finding as to the dollar amount of the fruits of a defendant‘s offense, the court may rely on the Probation Department аs a preliminary factfinder, but may not rely solely on the Probation Department‘s recommendations or delegate to the Probation Department its authority to set the amount of restitution; the court must make the final determination based on record evidence (seе
The award of extradition costs as part of the restitution was also unsupported by law. Extradition costs are normal operating costs of the law enforcement agency—which is not considered a “victim” of defendant‘s crime—and, therefore, are not ordinarily part of restitution (see People v LaValley, 272 AD2d 786, 786 [2000], lv denied 95 NY2d 906 [2000]; People v La Fave, 265 AD2d 740, 742 [1999], lv denied 94 NY2d 881 [2000]). Although a defendant may agree to pay such costs as part of a plea agreement (see
We are precluded from reviewing defendant‘s claim that the sentences imposed for his convictions of the crimes charged in the indictment—inсluding the enhanced sentence imposed for the first count of the SCI—were harsh and excessive by virtue of the valid waiver of appeal that he executed in connection with his pleas to those crimes (see People v Burt, 57 AD3d 1171 [2008]; People v Schmidt, 57 AD3d 1104 [2008]).
Cardona, P.J., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment is modified, on the law, by reversing so much thereof as made an award of restitution; matter remitted to the County Court of Clinton County for a restitution hearing; and, as so modified, affirmed.