PEOPLE v. JORDAN (2007)

Appeal from a judgment of the County Court of St. Lawrence County (Rogers, J.), rendered March 27, 2006, which revoked defendant's probation and imposed a sentence of incarceration.

Defendant was convicted of criminal mischief in the fourth degree and sentenced to three years of probation and ordered to pay restitution.   He thereafter admitted to violating certain terms of his probation, had the probation revoked and was resentenced to one year in jail.   Defendant now appeals.

Defendant initially contends that, given his history of drug addiction and mental illness, his sentence is harsh and excessive.   Upon review of the record, however, it is clear that County Court gave due consideration to defendant's history, the circumstances in connection with the underlying offense and defendant's continuous inability to comply with his probation conditions despite having been given several opportunities to do so.   Accordingly, we discern neither an abuse of discretion on the part of County Court nor the existence of extraordinary circumstances warranting modification of the sentence in the interest of justice (see People v. Bertsch, 31 A.D.3d 961, 962, 818 N.Y.S.2d 360 [2006];  People v. Garner, 28 A.D.3d 875, 875, 812 N.Y.S.2d 712 [2006] ).

Turning to the issue of restitution, the People “concede to the defendant's argument regarding the amount of the surcharge that should have been assessed” and “do not dispute the defendant's statements” regarding the amount of restitution actually paid.   However, the record is unclear as to those precise amounts.   Thus, the matter must be remitted to County Court for the appropriate inquiry and determination as to the specific outstanding balance.

ORDERED that the judgment is modified, on the facts, by reversing so much thereof as ordered restitution;  matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court's decision;  and, as so modified, affirmed.

LAHTINEN, J.

CARDONA, P.J., MERCURE, SPAIN and MUGGLIN, JJ., concur.