PEOPLE v. KELLY

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

PEOPLE of the State of New York, Respondent, v. Donald KELLY, Appellant.

Decided: April 25, 1997

Before DENMAN, P.J., and GREEN, LAWTON, BALIO and FALLON, JJ. Linda S. Reynolds by Olga Hazlewood, Buffalo, for Appellant. Frank J. Clark, III by Donna Milling, Buffalo, for Respondent.

Defendant contends that County Court erred in ordering him to pay restitution without conducting a hearing.   At sentencing, the court indicated that it was in possession of a receipt submitted by the victim regarding her out-of-pocket expenses in repairing damage to her house caused by defendant.   Defense counsel agreed that the amount was “substantiated by the receipts” and declined the court's offer to conduct a hearing.   Thus, defendant conceded the facts necessary to establish the amount of restitution (see, People v. Consalvo, 89 N.Y.2d 140, 145, 651 N.Y.S.2d 963, 674 N.E.2d 672;  People v. Serafini, 213 A.D.2d 1066, 624 N.Y.S.2d 328, lv. denied 85 N.Y.2d 980, 629 N.Y.S.2d 740, 653 N.E.2d 636;  cf., People v. Barnett, 237 A.D.2d 917, 654 N.Y.S.2d 918 ) and did not seek the hearing that he was entitled to by law (see, People v. Serafini, supra, at 1067, 624 N.Y.S.2d 328;  People v. Lugo, 191 A.D.2d 648, 595 N.Y.S.2d 114).

We have considered the remaining contention of defendant and conclude that it is without merit.

Judgment unanimously affirmed.

MEMORANDUM: