PEOPLE v. DIBBLE (2000)

 Defendant appeals from judgments convicting him upon his guilty pleas of robbery in the third degree (Penal Law § 160.05) and burglary in the third degree (Penal Law § 140.20).   Defendant contends that the pleas were rendered involuntary by defense counsel's alleged ineffective assistance.   The majority of the alleged instances of ineffective assistance of counsel are based upon matters outside the record and thus are not subject to review on direct appeal (see, People v. Williams, 272 A.D.2d 986, 708 N.Y.S.2d 673), and the record does not otherwise support defendant's contention (see, People v. Tyler, 260 A.D.2d 796, 798, 690 N.Y.S.2d 136, lv. denied 93 N.Y.2d 980, 695 N.Y.S.2d 67, 716 N.E.2d 1112).   The contention that County Court erred in failing to rule on defendant's motion to withdraw the guilty pleas cannot be reviewed because no such motion is included in the record (see, People v. Moe, 227 A.D.2d 253, 254-255, 642 N.Y.S.2d 656, lv. denied 88 N.Y.2d 968, 647 N.Y.S.2d 722, 670 N.E.2d 1354;  see also, People v. McDermott, 146 A.D.2d 874, 875, 536 N.Y.S.2d 863, lv. denied 73 N.Y.2d 1018, 541 N.Y.S.2d 773, 539 N.E.2d 601).

 The court erred, however, in failing to conduct a hearing to determine the proper amount of restitution to be made to the victim of the burglary.   “When the record is insufficient to support a finding as to the amount of loss caused by an offense, ‘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’ (Penal Law § 60.27[2] )” (People v. Dixon, 134 A.D.2d 877, 878, 522 N.Y.S.2d 49;  see also, People v. Wilson, 275 A.D.2d 1035, 714 N.Y.S.2d 920;  People v. Barton, 259 A.D.2d 989, 688 N.Y.S.2d 364).   Contrary to the People's contention, the record contains no indication of “defendant's express consent to, or explicit admission or concession of, [the] victim's monetary loss” (People v. Jody M., 208 A.D.2d 1019, 1020, 618 N.Y.S.2d 587;  see, People v. Consalvo, 89 N.Y.2d 140, 145-146, 651 N.Y.S.2d 963, 674 N.E.2d 672).   Therefore, we modify the judgment in appeal No. 2 by vacating the amount of restitution, and we remit the matter to Monroe County Court for a hearing to determine the amount of restitution to be paid by defendant.

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Monroe County Court for further proceedings.

MEMORANDUM: