PEOPLE v. BARTON

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Frederick P. BARTON, Defendant-Appellant.

Decided: March 31, 1999

PRESENT:  PINE, J.P., WISNER, HURLBUTT, SCUDDER and CALLAHAN, JJ. Lawrence J. Young of counsel, Syracuse, for defendant-appellant. Cindy Foote Intschert of counsel, Jefferson County District Attorney's Office, Watertown, for plaintiff-respondent.

Defendant pleaded guilty to criminal possession of marihuana in the third degree in satisfaction of a four-count indictment and was sentenced to a term of probation of five years and directed to pay restitution in the amount of $2,517.92.   Although the plea agreement provided for restitution, no amount appears in the record of the plea colloquy.   Defendant stated at sentencing that the amount in the presentence report, which has not been furnished on appeal, exceeded the amount discussed at the time of the plea.

Where, as here, there was no proof before County Court concerning the loss sustained, the court should have held a hearing to determine the proper amount of restitution (see, Penal Law § 60.27[2];  People v. Millar, 144 A.D.2d 1032, 534 N.Y.S.2d 631).   Although defendant by his plea consented to the restitution provision and he failed to request a hearing at the time of sentencing, defendant is nevertheless entitled to a restitution hearing because of the “ ‘essential nature’ of the right to be sentenced as provided by law” (People v. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563;  see, People v. Bentivegna, 145 A.D.2d 899, 899-900, 536 N.Y.S.2d 280).

We modify the judgment, therefore, by vacating the amount of restitution, and we remit the matter to Jefferson County Court for a hearing to determine the amount of restitution.

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

MEMORANDUM: