People v. Ward

Feb 27, 2013
Reporters:
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Ordered that the judgment is modified, on the law, by vacating the provision thereof directing the defendant to pay restitution in the sum of $9,042,437.50; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for a hearing and a new determination as to the proper amount of restitution and the manner of payment thereof.

The defendant was a participant in a scheme to sell cigarettes without payment of the required taxes. He pleaded guilty to a class E felony under the Tax Law (see former Tax Law § 1814 [a] [2] [ii]) in exchange, inter alia, for the promise of a specific prison term and a payment of restitution in the sum of $9,042,437.50. At sentencing, however, the defendant objected to the amount of restitution. The County Court, nevertheless, sentenced the defendant as promised, including the entry of a judgment directing the payment of restitution in the amount provided for in the defendant‘s plea agreement. On appeal, the defendant claims that the court should have held a hearing as to the proper amount of restitution.

Penal Law § 60.27 (2), which provides for restitution, is clear as to when a hearing must be held in setting the amount of restitution: “Whenever the court requires restitution or reparation to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense . . . If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in section 400.30 of the criminal procedure law” (emphasis added). Thus, a hearing must be held if the record does not contain sufficient facts or if the defendant requests a hearing (see People v Charles, 309 AD2d 873, 874 [2003]; People v Stubbs, 281 AD2d 498, 498 [2001]; People v Lambert, 221 AD2d 1015, 1015 [1995]). Here, the defendant preserved his claim for appellate review by contesting the amount of restitution at sentencing (cf. People v Isaacs, 71 AD3d 1161, 1161 [2010]). Although he did not specifically request a hearing, the record contains no evidence from which the proper amount of restitution may be determined. The fact that the defendant‘s plea agreement provided for a specific amount of restitution does not relieve the People from the requirement that they establish a record basis for that amount (see Penal Law § 60.27 [2]; People v Consalvo, 89 NY2d 140, 146 [1996]; People v Harden, 174 AD2d 691, 692 [1991]; People v Barnes, 135 AD2d 825, 826 [1987]). Consequently, the matter must be remitted to the County Court, Suffolk County, for a hearing and a new determination as to the proper amount of restitution and the manner of payment thereof (see People v Yong Ho Han, 200 AD2d 780, 782 [1994]; People v Barnes, 135 AD2d at 826). Skelos, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.