PEOPLE v. MASSAGLI (2008)

Judgment of resentence, Supreme Court, Bronx County (Joseph Fisch, J.), rendered July 8, 2004, convicting defendant, upon his plea of guilty, of violation of probation, and resentencing him to a term of 5 to 15 years, unanimously modified, on the law, to the extent of vacating the restitution order and remanding for a hearing on restitution, and otherwise affirmed.

Although defendant agreed to make restitution of the amount in question, he made no statement to support the amount of restitution ordered by the court and the record is bereft of any basis for the award (see People v. Consalvo, 89 N.Y.2d 140, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996] ).   Furthermore, this defect in the sentence presents a question of law notwithstanding defendant's failure to request a restitution hearing (People v. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563 [1982];  People v. White, 282 A.D.2d 396, 397, 723 N.Y.S.2d 665 [2001] ).

However, we find nothing unlawful about the violation of probation adjudication and the prison sentence.   While the record does not establish that defendant made a valid waiver of his right to appeal from that sentence on the ground of excessiveness, we perceive no basis for reducing it.