PEOPLE v. TIERNO (1999)

Defendant appeals from a judgment convicting him upon a plea of guilty of grand larceny in the third degree (Penal Law § 155.35).   County Court erred in ordering defendant to pay restitution in the amount of $152,062.94 without holding a hearing on that issue.   Defendant made no statement at the plea proceeding or at sentencing to support the amount of restitution ordered by the court (see, People v. Consalvo, 89 N.Y.2d 140, 144-145, 651 N.Y.S.2d 963, 674 N.E.2d 672;  People v. Barnett, 237 A.D.2d 917, 918, 654 N.Y.S.2d 918, lv. denied 90 N.Y.2d 855, 661 N.Y.S.2d 181, 683 N.E.2d 1055).   The court improperly relied on amounts recited in the presentence report (see, People v. Bernier, 197 A.D.2d 882, 604 N.Y.S.2d 876;  People v. Millar, 144 A.D.2d 1032, 1032-1033, 534 N.Y.S.2d 631).  That document does not contain sufficient evidence to support “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” (Penal Law § 60.27[2];  see, People v. Mangan, 258 A.D.2d 819, 686 N.Y.S.2d 506;  People v. Lynch, 255 A.D.2d 1001, 681 N.Y.S.2d 183;  People v. Swanson, 244 A.D.2d 945, 665 N.Y.S.2d 181, lv. denied 91 N.Y.2d 898, 669 N.Y.S.2d 12, 691 N.E.2d 1038).  Thus, we modify the judgment by vacating the amount of restitution, and we remit the matter to Onondaga County Court for a hearing to determine the amount of restitution.

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

MEMORANDUM: