PEOPLE v. GAZIVODA (2009)

Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered July 26, 2007, convicting defendant upon his plea of guilty of the crime of grand larceny in the second degree.

Defendant was charged in an indictment with grand larceny in the second degree for violating Lien Law § 79-a (1)(b) by misappropriating trust funds. Specifically, defendant, through his business, Construx Development Corporation, accepted approximately $597,000 from two property owners in connection with contracts for the improvement of the owners' real property. Minimal work was performed on the property and, when the owners demanded that Construx refund their money, it failed to do so.

Defendant subsequently pleaded guilty to the crime charged. During the plea colloquy, defense counsel indicated that defendant was aware that he would be ordered to pay restitution and that the presentence investigation report (hereinafter PSI) would set forth the specific figure. Counsel expressly reserved defendant's right to request a hearing on restitution if defendant did not agree with the figure set forth in the PSI. We note that the PSI does not, in fact, specify a figure; rather, the People requested at sentencing that defendant be ordered to pay restitution in the amount of $525,000. Both defense counsel and defendant then requested a hearing on the matter, with defendant strenuously objecting to the accuracy of the figure.¹ Nevertheless, County Court ordered that defendant pay the full amount of restitution requested by the People, without holding a hearing. The court then sentenced defendant to the agreed-upon term of 5 to 15 years in prison. Defendant appeals and we now modify and remit for a hearing on restitution.

Pursuant to statute, a restitution hearing is required “[i]f the record does not contain sufficient evidence to support [a] finding” of the actual out-of-pocket loss to the victim “or upon request by defendant ” (Penal Law § 60.27[2] [emphasis added]; see People v. Tzitzikalakis, 8 N.Y.3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44 [2007]; People v. Peters, 299 A.D.2d 663, 664, 749 N.Y.S.2d 608 [2002] ). Thus, when a defendant so requests, “the court [is] required to grant a hearing pursuant to Penal Law § 60.27(2) irrespective of the level of evidence in the record and to provide defendant with a reasonable opportunity to contest the People's evidence or supply evidence on his [or her] own behalf” (People v. Consalvo, 89 N.Y.2d 140, 146, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996]; see People v. Spry, 214 A.D.2d 771, 771, 625 N.Y.S.2d 98 [1995] ). Here, although defendant unequivocally and repeatedly demanded a hearing on restitution, no hearing was held. Accordingly, remittal is required for a hearing on the amount of restitution, at which the People will bear the burden of proving “both components of the restitution equation, the amount taken minus the benefit conferred” (People v. Tzitzikalakis, 8 N.Y.3d at 221-222, 832 N.Y.S.2d 120, 864 N.E.2d 44; see People v. Consalvo, 89 N.Y.2d at 146, 651 N.Y.S.2d 963, 674 N.E.2d 672; People v. Spry, 214 A.D.2d at 771, 625 N.Y.S.2d 98).

Defendant's remaining arguments require little discussion. There is no support in the record for defendant's assertion that County Court coerced him into abandoning his request to withdraw his plea (see People v. Morelli, 46 A.D.3d 1215, 1216, 847 N.Y.S.2d 789 [2007], lv. denied 10 N.Y.3d 814, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008] ). Furthermore, inasmuch as defendant “ ‘receive[d] an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel’ ” (People v. Singletary, 51 A.D.3d 1334, 1335, 858 N.Y.S.2d 483 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008], quoting People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ), his contention that he was denied the effective assistance of counsel lacks merit. Finally, we reject defendant's argument that his sentence-which was imposed in accordance with the plea agreement-was harsh and excessive, particularly given his criminal history and the fact that the sentence runs concurrently to those imposed for similar, but unrelated, crimes in other jurisdictions.

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

MERCURE, J.P.

KAVANAGH, STEIN, McCARTHY and GARRY, JJ., concur.