People v. Chung

• Docket Number: 2021–01724,Ind. No. 729/19
• Decision Date: 15 February 2023
• Citation: 213 A.D.3d 107,184 N.Y.S.3d 141
• Parties: The PEOPLE, etc., respondent, v. Donn CHUNG, appellant.
• Court: New York Supreme Court — Appellate Division

213 A.D.3d 107
184 N.Y.S.3d 141

The PEOPLE, etc., respondent,
v.
Donn CHUNG, appellant.

2021–01724
Ind. No. 729/19

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

Argued—November 10, 2022
February 15, 2023

John Healy, Uniondale, NY, for appellant.

Anne T. Donnelly, District Attorney, Mineola, NY (Autumn S. Hughes of counsel; James Hunter on the brief), for respondent.

ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, HELEN VOUTSINAS, JJ.

OPINION & ORDER

WOOTEN, J.

Pursuant to Penal Law § 60.27, in sentencing a criminal defendant, the court may require the defendant to pay restitution of the fruits of an offense for which he or she was convicted. Under certain circumstances set forth in the statute, the court must first conduct a hearing to determine the appropriate amount of restitution. However, this Court's case law has not consistently articulated the circumstances which trigger the need for a restitution hearing in accordance with the statute. Thus, we take this opportunity to clarify that a restitution hearing is required when either (1) the defendant requests such a hearing, or (2) the record does not contain sufficient evidence to establish the appropriate amount of restitution.

I. Factual Background

In May 2019, the defendant was charged by indictment with crimes including two counts of burglary in the second degree, criminal possession of stolen property in the third, fourth, and fifth degrees, and resisting arrest. The indictment arose from the defendant's alleged theft of property from various homes in Nassau County over the period December 20, 2018, to February 26, 2019.

On November 1, 2019, the defendant entered a plea of guilty to two counts of burglary in the second degree, criminal possession of stolen property in the third, fourth, and fifth degrees, and resisting arrest, in full satisfaction of the indictment. Prior to the defendant accepting the plea agreement, an assistant district attorney

184 N.Y.S.3d 145

stated that the charges at issue pertained to, inter alia, the theft of property from a home in Greenvale, on December 20, 2018, and the theft of property from a home in Port Washington, on February 8, 2019. According to testimony elicited before the grand jury, Wilhelmine Diez was the owner of property stolen from her home in Greenvale on December 20, 2018, and Peter Scherrer was a resident of the home in Port Washington from which property was stolen on February 8, 2019.

At the plea proceeding, the Supreme Court advised the defendant that in addition to the promised terms of imprisonment and postrelease supervision, his sentence would include a directive to pay restitution. The court noted that the Nassau County Probation Department (hereinafter Probation Department) would be asked to make a determination as to the appropriate amount of restitution.

Thereafter, the Probation Department issued a restitution preliminary fact-finding report (hereinafter the preliminary restitution report) finding that Scherrer sustained losses for stolen property in the sum of $50,095, and Diez sustained losses for stolen property in the sum of $3,446.85. The preliminary restitution report did not contain a description of the stolen property, itemized findings as to the value of individual items of property, or any explanation as to how the total amounts of the losses were evaluated. The preliminary restitution report simply stated that the amounts were verified by: (1) an appraisal by Vardi Stonehouse, Inc.; (2) a repair estimate by "Anderson"; and (3) "Other: Simco Manufacturing Jewelers, Inc., showing cost from Tourneau, Judith Ripka fine jewelry, Ebay, London Jewelers, Amanda Megibow, bloomingdales, Wilhelmine Diez—the Diamond Center London Jewelers, Kent Jewelry, Inc., Value Vision International, Inc."

In October 2020, the defendant moved, pro se, to withdraw his plea of guilty, asserting, inter alia, that he was "misinformed" by his attorney to enter a plea of guilty. On January 27, 2021, the Supreme Court denied the defendant's motion to withdraw his plea of guilty. The court then imposed sentence, including directing the defendant to pay restitution in the exact amounts stated in the preliminary restitution report in the sum of $53,541.85.

II. Analysis

A. Appeal Waiver

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The Supreme Court adequately advised the defendant of the nature of the right to appeal and distinguished it from other rights automatically forfeited as a consequence of pleading guilty (see People v. Koch, 168 A.D.3d 977, 978, 90 N.Y.S.3d 542 ). Further, the court did not mischaracterize the appeal waiver as encompassing an absolute bar to the taking of a direct appeal and a forfeiture of the attendant rights to counsel and poor person relief (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ).

Nevertheless, the defendant's contention that he was illegally sentenced to pay restitution to individuals who were not so entitled under Penal Law § 60.27 survives his valid waiver of the right to appeal (see generally People v. Spencer, 149 A.D.3d 983, 52 N.Y.S.3d 430 ). Further, the defendant's contention that the Supreme Court erred in directing him, without a hearing, to pay restitution in the sum of $53,541.85 survives his valid waiver of

184 N.Y.S.3d 146

the right to appeal, as the amount of restitution was not made part of the plea agreement (see People v. Jensen, 205 A.D.3d 926, 927, 166 N.Y.S.3d 579 ; People v. Isaacs, 71 A.D.3d 1161, 898 N.Y.S.2d 226 ). In addition, the defendant's challenge to the issuance of an order of protection at sentencing survives his valid waiver of the right to appeal (see People v. Tumolo, 203 A.D.3d 961, 962, 161 N.Y.S.3d 824 ; People v. Hanniford, 174 A.D.3d 921, 922, 103 N.Y.S.3d 318 ).

B. Restitution

"Restitution—seeking to ensure that an offender's punishment includes making the victim whole—has been a part of New York's criminal justice system since at least 1910" ( People v. Tzitzikalakis, 8 N.Y.3d 217, 220, 832 N.Y.S.2d 120, 864 N.E.2d 44 ). "Restitution is ‘the sum necessary to compensate the victim for out-of-pocket losses’ " ( id. at 220, 832 N.Y.S.2d 120, 864 N.E.2d 44, quoting People v. Consalvo, 89 N.Y.2d 140, 144, 651 N.Y.S.2d 963, 674 N.E.2d 672 ).

On appeal, the defendant raises the following contentions with respect to the Supreme Court's directive that he pay restitution in the sum of $53,541.85: (1) that he was illegally directed to pay restitution for "uncharged crimes"; (2) that the court erred by failing to conduct a restitution hearing and failing to make independent findings with respect to the appropriate amount of restitution and his ability to pay; and (3) that the court erred by failing to disclose the terms of its restitution order to the defendant.

1. Legality of Directive to Pay Restitution

Initially, while the defendant raised no objection at sentencing that he was illegally directed to pay restitution for uncharged crimes, that contention is not subject to the preservation rule (see People v. Martinez, 144 A.D.3d 708, 708, 39 N.Y.S.3d 810 ).

However, contrary to the defendant's contention, the Supreme Court's directive that he pay restitution did not result in an illegal sentence. Pursuant to Penal Law § 60.27(1), the court "may require restitution ... as part of the sentence imposed upon a person convicted of an offense." For these purposes, an "offense" is defined to include "the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense" ( id. § 60.27[4][a] ).

Here, the record reflects that the individuals to whom restitution was directed, Scherrer and Diez, were victims of offenses for which the defendant was convicted. While the...