PEOPLE v. DISTAFFEN (1998)

Defendant appeals from a judgment convicting him upon his plea of guilty of four counts of sodomy in the second degree (Penal Law § 130.45).   Defendant was sentenced to four consecutive terms of imprisonment of 21/313 to 7 years each, was fined $5,000 on each count, and was ordered to pay restitution in an amount not to exceed $15,000, to be determined on a report from the District Attorney.

Defendant contends that the sentence is illegal because County Court, without conducting a hearing or without other evidentiary basis, directed him to pay restitution in an indefinite amount.   We agree.   We therefore modify the judgment by vacating the sentence insofar as it directs defendant to pay restitution in an unspecified amount (see, People v. Beaudoin, 195 A.D.2d 996, 600 N.Y.S.2d 558, lv. denied 82 N.Y.2d 891, 610 N.Y.S.2d 158, 632 N.E.2d 468).   We remit the matter to Monroe County Court to consider additional evidence and make appropriate findings concerning the amount of restitution (see, People v. Bernier, 197 A.D.2d 882, 604 N.Y.S.2d 876;  People v. Beaudoin, supra, at 996, 600 N.Y.S.2d 558) and also to comply with the Sex Offender Registration Act (see, Correction Law § 168-d).

Defendant's challenge to the severity of the sentence is foreclosed by defendant's valid waiver of the right to appeal (see, People v. Clark, 239 A.D.2d 939, 659 N.Y.S.2d 612, lv. denied 90 N.Y.2d 892, 662 N.Y.S.2d 434, 685 N.E.2d 215).   In any event, we conclude that the challenge is without merit.

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

MEMORANDUM: