PEOPLE v. GUISE (2000)

 Defendant appeals from a judgment convicting him upon his plea of guilty of unauthorized use of a vehicle in the second degree (Penal Law § 165.06) and attempted reckless endangerment in the first degree (Penal Law §§ 110.00, 120.25).   He was sentenced as a second felony offender to consecutive indeterminate terms of incarceration of 2 to 4 and 1 1/212 to 3 years, respectively, and was ordered to pay $2,247.35 in restitution.   We reject the contention of defendant that Supreme Court erred in ordering him to pay restitution without affording him an opportunity to withdraw his guilty plea.   No sentencing promise was made to defendant, and thus the court did not err in ordering him to pay restitution (cf., People v. McCloskey, 272 A.D.2d 983, 708 N.Y.S.2d 677;  People v. Thomas, 210 A.D.2d 902, 902-903, 621 N.Y.S.2d 978).   We agree with defendant, however, that the court erred in determining the amount of restitution without holding a hearing.  “[W]here guilt is established pursuant to a plea agreement rather than a trial, evidence to support the restitution amount generally can only be found in the agreement itself or the minutes of the plea allocution” (People v. Consalvo, 89 N.Y.2d 140, 144, 651 N.Y.S.2d 963, 674 N.E.2d 672).   In determining the amount of restitution, the court relied on estimates submitted by the victim to repair his vehicle that was damaged as a result of defendant's criminal conduct.   Defendant did not plead guilty with the knowledge that the court would order restitution, nor did he agree to the amount of restitution ordered by the court at sentencing;  indeed, at no time did defendant admit that he damaged the vehicle (see, 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;  cf., People v. Kim, 91 N.Y.2d 407, 410-411, 671 N.Y.S.2d 420, 694 N.E.2d 421;  People v. Rocklin, 265 A.D.2d 920, 921, 698 N.Y.S.2d 119, lv. denied 94 N.Y.2d 906, 707 N.Y.S.2d 391, 728 N.E.2d 990).   We therefore modify the judgment by vacating the amount of restitution, and we remit the matter to Supreme Court for a hearing to determine the amount of restitution (see, People v. Dibble [appeal No. 2], 277 A.D.2d 539, 716 N.Y.S.2d 539).

 Contrary to the contention in defendant's pro se supplemental brief, the court was not required to impose concurrent sentences (see, People v. Brown, 80 N.Y.2d 361, 363-364, 590 N.Y.S.2d 422, 604 N.E.2d 1353;  see also, People v. Chaney, 163 A.D.2d 617, 558 N.Y.S.2d 672, lv. denied 76 N.Y.2d 892, 561 N.Y.S.2d 554, 562 N.E.2d 879;  see generally, People v. Laureano, 87 N.Y.2d 640, 642 N.Y.S.2d 150, 664 N.E.2d 1212).   Although defendant was not informed of the potential periods of incarceration if consecutive sentences were imposed and thus his waiver of the right to appeal does not encompass his challenge to the severity of the sentence (see, People v. Cormack, 269 A.D.2d 815, 703 N.Y.S.2d 808;  People v. Wynn, 262 A.D.2d 1052, 691 N.Y.S.2d 807;  cf., People v. Lococo, 92 N.Y.2d 825, 677 N.Y.S.2d 57, 699 N.E.2d 416), we nevertheless conclude that the sentence is not unduly harsh or severe.

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

MEMORANDUM: