PEOPLE v. MARONE

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The PEOPLE of the State of New York, Respondent, v. Franklin MARONE, Appellant.

Decided: December 24, 2009

Before: MERCURE, J.P., SPAIN, ROSE, KANE and GARRY, JJ. Franklin Marone, Otisville, appellant pro se. Andrew M. Cuomo, Attorney General, New York City (Monica Wagner of counsel), for respondent.

Appeal from an amended order of the County Court of Greene County (Pulver Jr., J.), entered June 23, 2008, which partially denied defendant's motion to vacate a prior order of restitution.

Defendant was charged in a 26-count indictment with multiple crimes after engaging in a phony investment scheme and defrauding friends and associates of millions of dollars. He pleaded guilty to scheme to defraud in the first degree and two counts of grand larceny in the first degree, was sentenced to a prison term, ordered to pay restitution in the amount of $4,669,458.77 and, later, unsuccessfully appealed his judgment of conviction (36 A.D.3d 956, 825 N.Y.S.2d 841 [2007], lv. denied 8 N.Y.3d 987, 838 N.Y.S.2d 490, 869 N.E.2d 666 [2007] ).

On the civil side, the victims of defendant's crimes obtained a default judgment against defendant and were awarded $4,748,165.11 in compensatory damages (see Barone v. Marone, 2007 WL 4458118, U.S. Dist. Ct., S.D.N.Y., 04 Civ. 2001, Buschwald, J., 2007). Additionally, the victims filed a claim with the National Association of Securities Dealers seeking arbitration of several causes of action, including respondeat superior liability for intentional torts committed by an employee asserted against defendant's employers Carlin Equities Corporation and Generic Trading of Philadelphia, LLC (see id.). Carlin, Generic and the victims executed a mutual general release and settlement agreement (hereinafter the agreement) wherein Carlin agreed to pay in a lump sum $3,310,000 in consideration of a full and final resolution of all proceedings between the parties (see id.). District Court then vacated its default judgment against defendant finding that the general release was sufficiently broad to discharge defendant of civil liability.

Thereafter, defendant moved, pursuant to CPLR 5015, to vacate the criminal restitution order. The People conceded that the order should be offset by the amount of the civil settlement (see People v. Tzitzikalakis, 8 N.Y.3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44 [2007] ), but opposed a complete vacatur. County Court held that the victims' release of their civil claims against defendant did not encompass the criminal penalty and, thus, reduced the original restitution amount by the civil settlement, leaving a reduced restitution obligation of $1,359,458.77. Defendant appeals and we affirm.

Relying on basic contract principles, defendant asserts that the express language of the agreement operates as a full and final satisfaction and release of his entire criminal restitution obligation.1 Regardless of the broad scope of the agreement's language, we hold that this agreement between defendant's employers and his victims cannot operate to forgive his obligation to pay the restitution amount that remains unsatisfied after the civil settlement.

In New York, the purpose of imposing restitution in criminal cases is broader than compensating the victim for a loss; it serves the dual “purposes of easing the victim's financial burden while reinforcing the offender's sense of responsibility for the offense and providing a constructive opportunity for the offender to pay his or her debt to society” (People v. Horne, 97 N.Y.2d 404, 411, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002]; see Assembly Sponsor's Mem, 1983 N.Y. Legis Ann, at 172). Indeed, the Court of Appeals has observed that “restitution is recognized as an effective rehabilitative penalty because it forces defendants to confront concretely-and take responsibility for-the harm they have inflicted, and it appears to offer a greater potential for deterrence” (People v. Hall-Wilson, 69 N.Y.2d 154, 157, 513 N.Y.S.2d 73, 505 N.E.2d 584 [1987]; see Kelly v. Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 93 L.Ed.2d 216 [1986]; People v. Horne, 97 N.Y.2d at 411, 740 N.Y.S.2d 675, 767 N.E.2d 132). Although we have not previously decided this issue, other jurisdictions are in agreement that a victim's willingness to settle a civil action cannot operate to foreclose the state's interest in restitution in a criminal matter (see United States v. Brennan, 526 F.Supp.2d 378, 390-391 [E.D.N.Y. 2007] [and cases discussed therein]; Kirby v. State, 863 So.2d 238, 243-244 [2003] [and cases cited therein]; State v. Applegate, 266 Kan. 1072, 1073-1080, 976 P.2d 936, 938 [1999] ).

ORDERED that the amended order is affirmed.

SPAIN, J.

MERCURE, J.P., ROSE, KANE and GARRY, JJ., concur.

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