People v. UlmerPeople v. Ulmer
Defendant waived indictment and was charged in a superior court information with burglary in the second degree arising from a break-in at the home of his aunt and uncle and the theft of two flat screen television sets. In satisfaction thereof and of other outstanding charges, he pleaded guilty to attempted burglary in the second degree and was sentenced to a five-year period of probation. One of the conditions of his probation was that he pay restitution in the amount of $7,284,32 to his aunt and uncle. Defendant subsequently violated the conditions of his probation, but ultimately admitted to one probation violation that resulted in the revocation of his probation. In exchange for his admission, he was to be resentenced on the attempted burglary conviction to two years in prison followed by three years of postrelease supervision. County Court granted defendant a brief furlough prior to sentencing, but specifically advised him, among other things, that if he tested positive for drugs or failed to appear for sentencing, he would be resentenced to an enhanced sentence of four years in prison followed by three years of postrelease supervision. Defendant failed to appear for sentencing because he was hospitalized due to a drug overdose. Consequently, County Court imposed the enhanced sentence and also issued a restitution order directing defendant to pay $722.20 to an individual who was neither defendant‘s aunt nor uncle. Defendant now appeals.
Defendant contends, as he did at sentencing, that County Court abused its discretion in imposing the enhanced sentence in light of his drug addiction and attempt to commit suicide by
Defendant further contends that County Court erroneously directed him to pay restitution to an individual who was not a victim of the crime to which he pleaded guilty. Although this claim is also unpreserved due to defendant‘s failure to request a hearing or raise an objection at sentencing (see People v Wright, 154 AD3d 1015, 1016 [2017], lv denied 30 NY3d 1065 [2017]; People v Davis, 150 AD3d 1329, 1330 [2017]), we nevertheless exercise our discretion to take corrective action in the interest of justice under the circumstances presented (see People v Grumberg, 153 AD3d 1525, 1527 [2017]; People v Nesbitt, 144 AD3d 1329, 1329-1330 [2016]). Clearly, the individual to whom restitution was awarded was not defendant‘s aunt or uncle or a victim of the attempted burglary. The People, however, point out that the restitution provisions of Penal Law § 60.27 extend to any offense “that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense” (
Lynch, J.P., Devine, Clark, Aarons and Rumsey, JJ., concur.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reversing so much thereof as ordered restitution, and, as so modified, affirmed.