PEOPLE v. TRAVIS (2009)

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered January 3, 2008, convicting defendant upon his plea of guilty of the crime of grand larceny in the third degree.

Defendant waived indictment, pleaded guilty to a superior court information charging him with grand larceny in the third degree and was sentenced as a second felony offender to a prison term of 3 to 6 years.   Defendant waived his right to appeal and agreed to execute a confession of judgment in lieu of restitution.   At the time of sentencing, a representative of the corporate victim failed to appear or otherwise provide County Court with a restitution figure.   County Court proceeded to sentence defendant to the agreed-upon term, but left the issue of restitution “open” for two weeks.   County Court thereafter entered a restitution order in the amount of $22,050, representing the principal sum of $21,000, together with the statutory surcharge.   Defendant now appeals, asking that the matter be remitted for a restitution hearing.   The People join in defendant's request.

 Preliminarily, as the plea agreement did not include the amount of restitution to be awarded, defendant may challenge the restitution order despite his waiver of the right to appeal (see People v. McLean, 59 A.D.3d 859, 860, 873 N.Y.S.2d 383 [2009];  People v. Wilson, 59 A.D.3d 807, 872 N.Y.S.2d 758 [2009];  compare People v. Gilmour, 61 A.D.3d 1122, 876 N.Y.S.2d 553 [2009] ).   Turning to the merits of his challenge, although there is no dispute that defendant was aware that restitution would be part of the negotiated sentence, the first notice that he received of the amount of restitution came from the restitution order, which, in turn, was based solely upon a terse letter from the victim's corporation counsel setting forth the damages allegedly sustained.   No detailed information was provided regarding the alleged loss or the manner in which it was computed, nor was defendant afforded any opportunity to contest the sum awarded.   Under such circumstances, we agree with the parties that this matter must be remitted to County Court for an appropriate restitution hearing (see Penal Law § 60.27[2];  People v. McLean, 59 A.D.3d at 860, 873 N.Y.S.2d 383).

 However, to the extent that defendant further argues that the restitution order should have been vacated due to County Court's failure to consider his ability to pay, we disagree.   For the reasons set forth in People v. Henry, --- A.D.3d ----, 881 N.Y.S.2d 701 [decided herewith], a defendant's ability to pay is not a mandatory consideration when restitution is ordered in connection with a non-probationary sentence that includes, as a significant component thereof, a period of incarceration (see Penal Law § 60.27[1];  People v. Holmes, 300 A.D.2d 1072, 1073, 751 N.Y.S.2d 894 [2002];  People v. Emmi, 254 A.D.2d 840, 840, 679 N.Y.S.2d 484 [1998], lv. denied 92 N.Y.2d 949, 681 N.Y.S.2d 479, 704 N.E.2d 232 [1998];  see also People v. Jackson, 23 A.D.3d 1057, 803 N.Y.S.2d 471 [2005], lv. denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285 [2006];  compare Penal Law § 65.10[2][g] ).

I respectfully concur.   It is my view that, as a result of this Court's decision in People v. Henry, --- A.D.3d ----, 881 N.Y.S.2d 701 [decided herewith], it has become unclear which factors must be considered by a court imposing restitution as part of a sentence that also includes a period of incarceration.   Pursuant to this Court's long-standing precedent, a defendant's ability to pay is a mandatory consideration when restitution is ordered, regardless of whether the sentence includes a period of incarceration.   Thus, defendant's ability to pay should be considered upon remittal.

As relevant here, “[w]here restitution is requested, Penal Law § 60.27 ․ states that the sentencing court ‘shall’ order restitution in addition to any other sentence imposed ‘unless the interests of justice dictate otherwise’ ” (People v. Horne, 97 N.Y.2d 404, 412, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002], quoting Penal Law § 60.27[1] ).   In that regard, the Court of Appeals has long held-and recently affirmed-that “a restitution order [under Penal Law § 60.27] must include appropriate ‘offsets or other factors which could properly reduce the total amount,’ ” such as the value of any benefit that the victim may have received (People v. Tzitzikalakis, 8 N.Y.3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44 [2007] [emphasis added], quoting People v. Fuller, 57 N.Y.2d 152, 158, 455 N.Y.S.2d 253, 441 N.E.2d 563 [1982] [internal quotation marks and citation omitted] ).   In accordance with that mandate, along with the well-settled rule that a sentencing court may not “delegate the power to fix conditions of ․ restitution or reparation to the Probation Department” (People v. Fuller, 57 N.Y.2d at 155, 455 N.Y.S.2d 253, 441 N.E.2d 563;  see People v. Sparber, 10 N.Y.3d 457, 470, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] [citing Fuller for the proposition that “the court ․ alone must impose the sentence”] ), this Court has consistently instructed in our prior cases over the past two decades that certain other factors must be considered in imposing restitution, although any one factor may not be dispositive in a given case.   Particularly relevant here, our precedent dictates that a court imposing restitution under Penal Law § 60.27 is required to consider, among other things, “the manner of payment and defendant's financial ability to pay the same,” regardless of whether the defendant is sentenced to a period of incarceration (People v. Frisco, 221 A.D.2d 779, 780, 633 N.Y.S.2d 422 [1995];  see e.g. People v. Coston, 55 A.D.3d 943, 947, 865 N.Y.S.2d 702 [2008], lv. denied 11 N.Y.3d 924, 874 N.Y.S.2d 9, 902 N.E.2d 443 [2009];  People v. Durant, 41 A.D.3d 976, 977, 838 N.Y.S.2d 699 [2007];  People v. Chiera, 255 A.D.2d 685, 685, 681 N.Y.S.2d 111 [1998];  People v. Dominique, 229 A.D.2d 719, 720-721, 645 N.Y.S.2d 625 [1996], affd. 90 N.Y.2d 880, 661 N.Y.S.2d 597, 684 N.E.2d 27 [1997];  People v. Monette, 199 A.D.2d 589, 589, 604 N.Y.S.2d 333 [1993];  People v. Landes, 192 A.D.2d 1, 6, 600 N.Y.S.2d 292 [1993], affd. 84 N.Y.2d 655, 621 N.Y.S.2d 283, 645 N.E.2d 716 [1994];  People v. Robinson, 174 A.D.2d 779, 779, 570 N.Y.S.2d 725 [1991];  People v. Baker, 156 A.D.2d 766, 766-767, 549 N.Y.S.2d 187 [1989];  see also Donnino, 2008 Supp. Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 39, Penal Law § 60.27, 2008 Supp. Pamph., at 188).

It should be noted that our cases are consistent with those arising out of the Appellate Division, Second Department, which has long adhered to an identical rule (see e.g. People v. Myron, 28 A.D.3d 681, 684, 814 N.Y.S.2d 198 [2006], cert. denied 549 U.S. 1326, 127 S.Ct. 1919, 167 L.Ed.2d 572 [2007];  People v. Melvin, 11 A.D.3d 639, 640, 782 N.Y.S.2d 682 [2004];  People v. Han, 200 A.D.2d 780, 782, 607 N.Y.S.2d 365 [1994], lv. denied 83 N.Y.2d 916, 614 N.Y.S.2d 398, 637 N.E.2d 289 [1994];  People v. Mela, 172 A.D.2d 630, 631, 568 N.Y.S.2d 432 [1991];  People v. Horton, 171 A.D.2d 688, 688, 567 N.Y.S.2d 156 [1991];  People v. Credidio, 141 A.D.2d 661, 663, 529 N.Y.S.2d 374 [1988], lv. denied 72 N.Y.2d 1044, 534 N.Y.S.2d 943, 531 N.E.2d 663 [1988];  People v. Barnes, 135 A.D.2d 825, 826, 522 N.Y.S.2d 930 [1987] ).   In contrast, the Fourth Department has more recently held that a court, in ordering restitution, need not consider a defendant's ability to pay when a defendant's sentence includes a term of imprisonment (see People v. Jackson, 23 A.D.3d 1057, 1057, 803 N.Y.S.2d 471 [2005], lv. denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285 [2006];  People v. Holmes, 300 A.D.2d 1072, 1073, 751 N.Y.S.2d 894 [2002];  People v. Emmi, 254 A.D.2d 840, 840, 679 N.Y.S.2d 484 [1998], lv. denied 92 N.Y.2d 949, 681 N.Y.S.2d 479, 704 N.E.2d 232 [1998] ).   These Fourth Department cases are unpersuasive inasmuch as they are grounded upon a misreading of a Second Department case-People v. Weinberg, 213 A.D.2d 506, 507, 624 N.Y.S.2d 887 [1995], lv. denied 88 N.Y.2d 970, 647 N.Y.S.2d 724, 670 N.E.2d 1356 [1995]-that involved only the interpretation of the scope of a particular remittitur and cannot be reasonably construed as altering the Second Department's long-standing rule that a defendant's ability to pay must be considered when restitution is imposed.

Nevertheless, this Court now,¹ in dicta, after sentencing (see People v. Dickson, 55 A.D.3d 1137, 1138, 867 N.Y.S.2d 216 [2008];  People v. Dickson, 260 A.D.2d 931, 933-934, 690 N.Y.S.2d 282 [1999], lv. denied 93 N.Y.2d 1017, 697 N.Y.S.2d 576, 719 N.E.2d 937 [1999] ). has indicated its willingness to adopt the Fourth Department's position-stating that courts are no longer required to consider a defendant's ability to pay when imposing restitution along with a sentence of imprisonment, and citing the Fourth Department line of cases for authority (People v. Henry, at ----, 881 N.Y.S.2d 701).   Guided by the principle of stare decisis-which “ ‘is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process' ” (People v. Taylor, 9 N.Y.3d 129, 148, 848 N.Y.S.2d 554, 878 N.E.2d 969 [2007], quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 [1991] )-I find the suggested departure from our precedent to be misguided.   Moreover, both the decision in Henry and the majority in this case set forth an unworkable test for determining when a defendant's ability to pay must be considered-directing that such consideration is mandatory only when incarceration is not a “ significant component” of a sentence without providing any indication of what component this Court would deem “significant.”   In the absence of any statutory basis for this new test or any persuasive authority establishing that defendant's ability to pay need not be considered when imposing restitution, I would hold that upon remittal, County Court must follow our established rule and “determine the amount of damage or loss, defendant's financial condition, the appropriate amount of restitution and a payment schedule” (People v. Monette, 199 A.D.2d at 589, 604 N.Y.S.2d 333 [emphasis added] ).

ORDERED that the judgment is modified, on the law, by reversing so much thereof as ordered restitution in the amount of $22,050;  matter remitted to the County Court of Sullivan County for further proceedings not inconsistent with this Court's decision;  and, as so modified, affirmed.

FOOTNOTES

1.   In People v. Henry (supra), the verdict was rendered following trial and the defendant failed to request a hearing, object to the amount of restitution imposed, or raise any issues regarding his ability to pay (id. at ----, 881 N.Y.S.2d 701).   Inasmuch as the defendant challenged only the procedure used in determining his sentence, rather than the legality of the sentence on its face, the issues presented therein were unpreserved for this Court's review because the defendant failed to raise them in a timely manner (see People v. Horne, 97 N.Y.2d at 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132;  People v. Callahan, 80 N.Y.2d 273, 281, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];  People v. Williams, 28 A.D.3d 1005, 1011, 814 N.Y.S.2d 353 [2006], lv. denied 7 N.Y.3d 819, 822 N.Y.S.2d 494, 855 N.E.2d 810 [2006];  cf. People v. Fuller, 57 N.Y.2d at 156, 455 N.Y.S.2d 253, 441 N.E.2d 563).   Thus, the Court's discussion of restitution in Henry is merely dicta (see CPL 470.15[6][a] [indicating that intermediate appellate courts have jurisdiction to modify or reverse upon unpreserved errors in the interest of justice, as opposed to merely discussing unpreserved issues that are otherwise not properly before us] ).   Here, preservation was not required because defendant was not made aware of the amount of restitution to be imposed as part of his negotiated plea or given the opportunity to object that he lacked the ability to pay until after sentencing (see People v. Dickson, 55 A.D.3d 1137, 1138, 867 N.Y.S.2d 216 [2008];  People v. Dickson, 260 A.D.2d 931, 933-934, 690 N.Y.S.2d 282 [1999], lv. denied 93 N.Y.2d 1017, 697 N.Y.S.2d 576, 719 N.E.2d 937 [1999] ).

KAVANAGH, J.

PETERS, LAHTINEN and STEIN, JJ., concur.