PEOPLE v. GIBSON

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

The PEOPLE of the State of New York, Respondent, v. Dana GIBSON, Appellant.

Decided: December 21, 2000

Before:  CARDONA, P.J., CREW III, PETERS, ROSE and LAHTINEN, JJ. David S. Michaels, Spencertown, for appellant. Robert M. Winn, District Attorney (Bertlen F. Turner of counsel), Fort Edward, for respondent.

Appeal from a judgment of the County Court of Washington County (Hemmett Jr., J.), rendered December 3, 1999, convicting defendant upon his plea of guilty of the crime of criminal mischief in the third degree.

Defendant was charged with criminal mischief in the second degree after he damaged property belonging to the State correctional facility where he was incarcerated.   He pleaded guilty to the reduced charge of criminal mischief in the third degree in exchange for a 1 1/212 to 3-year prison sentence, to run consecutively to the sentence he was then serving.   In addition, it was agreed that defendant would pay restitution in the amount of $1,200 with a credit for any payments made pursuant to the tier III disciplinary determination rendered in connection with the incident.   At the sentencing hearing, County Court imposed the agreed-upon restitution and prison term acknowledging that defendant was to get “credit for Tier III assessments withheld”, but neither the sentencing and commitment order nor the order and notice at sentencing specified that defendant was to be given credit for such payments.   Defendant appeals, seeking only to modify the sentencing and commitment order and the order and notice at sentencing to reflect his entitlement to a credit for any restitution payments made pursuant to the disciplinary determination.

Defendant's claim that the restitution provisions set forth in the orders are inconsistent with the intent of County Court expressed at sentencing raises no appealable issue regarding his judgment of conviction.   Whether County Court's orders require modification is a matter that should be submitted to that court by proper motion for resolution (see generally, People ex rel. McLeod v. New York State Div. of Parole, 193 A.D.2d 942, 944, 597 N.Y.S.2d 789, lv. denied 82 N.Y.2d 655, 602 N.Y.S.2d 804, 622 N.E.2d 305;  People ex rel. Townsand v. Superintendent, Downstate Correctional Facility, 115 A.D.2d 678, 679, 496 N.Y.S.2d 513).

ORDERED that the judgment is affirmed.

LAHTINEN, J.

CARDONA, P.J., CREW III, PETERS and ROSE, JJ., concur.

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