Niagara County Attorney, Petitioner-Respondent.  (Appeal No. 1.) v. << (2007)

Respondents were adjudicated juvenile delinquents based on findings that they committed acts that, if committed by an adult, would constitute the crime of criminal mischief in the third degree (Penal Law § 145. 05[2] ).   By the orders on appeal, Family Court ordered each respondent, respectively, to pay restitution with respect to the 14 vehicles for which the victim made claims for damages.   That was error.   Pursuant to Penal Law § 60.27, restitution with respect to 14 vehicles, rather than the five vehicles charged in each petition, would be permissible because the damage to the additional nine vehicles was “part of the same criminal transaction” (§ 60.27[4][a];  see generally People v. Dorsey, 26 A.D.3d 800, 808 N.Y.S.2d 881, lv. denied 6 N.Y.3d 833, 814 N.Y.S.2d 81, 847 N.E.2d 378).   There is, however, no parallel provision in Family Court Act § 353.6, which governs restitution in juvenile delinquency matters, and the parties' contentions concerning Penal Law § 60.27 therefore are irrelevant.   We agree with respondents that restitution should be limited to those items recited in the petitions (see Family Ct. Act § 353.6[1][a];  see generally Matter of Joel M., 240 A.D.2d 747, 660 N.Y.S.2d 142;   Matter of Kerry E., 161 A.D.2d 843, 555 N.Y.S.2d 489).   Because we are unable to determine the proper amount of restitution on the record before us (cf. Matter of Lamedh B., 299 A.D.2d 966, 750 N.Y.S.2d 708), we therefore modify the order in each appeal by vacating the amount of restitution, and we remit the matters to Family Court for a new restitution hearing.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the amount of restitution and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Niagara County, for a new restitution hearing.

MEMORANDUM: