PEOPLE v. MALISZEWSKI (2008)

Defendant appeals from a judgment convicting him upon a plea of guilty of burglary in the third degree (Penal Law § 140.20).   A condition of the plea agreement was that, if defendant at sentencing paid half the amount of restitution that remained unpaid from previous convictions, County Court would impose an indeterminate term of incarceration of 2 to 4 years and that the term of incarceration otherwise would be 3 to 6 years.   Another condition of the plea agreement was that defendant pay restitution for the loss sustained by the victim of the instant offense.   At sentencing, defendant did not pay half the amount of restitution that remained unpaid from previous convictions, and the court sentenced him as a second felony offender to an indeterminate term of incarceration of 3 to 6 years and restitution in the amount of $638.40.

 We agree with defendant that the court erred in enhancing his sentence of incarceration based upon his failure to pay restitution arising from previous convictions.  “Restitution may be based only on ‘the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty’ ” (People v. Visser, 256 A.D.2d 1106, 1107, 692 N.Y.S.2d 868, quoting Penal Law § 60.27[4][a];  see People v. Casiano, 8 A.D.3d 761, 762-763, 779 N.Y.S.2d 259;  People v. Diola, 299 A.D.2d 962, 750 N.Y.S.2d 716, lv. denied 99 N.Y.2d 581, 755 N.Y.S.2d 717, 785 N.E.2d 739).   In addition, defendant did not admit the amount of the burglary victim's loss, and the record is insufficient to support the court's finding with respect to the amount of restitution for that loss.   The court therefore erred in failing to conduct a hearing on the issue of restitution for the burglary victim's loss, pursuant to CPL 400.30 (see People v. Dibble [Appeal No. 2], 277 A.D.2d 969, 970, 716 N.Y.S.2d 539).   We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court to resentence defendant to an indeterminate term of incarceration of 2 to 4 years and to impose restitution for the instant offense following a hearing to determine the amount of restitution or to afford defendant the opportunity to withdraw his plea.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Oswego County Court for further proceedings.

MEMORANDUM: