People v. Consalvo
| Decision Date | 26 November 1996 |
| Citation | 89 N.Y.2d 140,674 N.E.2d 672,651 N.Y.S.2d 963 |
| Parties | , 674 N.E.2d 672 The PEOPLE of the State of New York, Respondent, v. Anthony CONSALVO, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Defendant is a podiatrist. On May 10, 1994, he entered a guilty plea to grand larceny, fourth degree, in full satisfaction of an indictment charging him with grand larceny and multiple counts of offering a false instrument for filing and falsifying business records. The charges were based on improper billings for Medicaid patients between 1986 and 1992. The plea was entered after extended negotiations and contained a provision requiring defendant to pay the State $500,000 as restitution prior to sentencing. When defendant subsequently appeared for sentencing, he was represented by new attorneys who moved to vacate the plea or, alternatively for a hearing on the amount of the restitution. The court denied both motions but before imposing sentence accepted from the prosecutor an affidavit of a statistician and incorporated it into the record. The affidavit purported to establish, by extrapolating from six fraudulent claims and the losses occasioned by them, that the damages to the State totaled no less than $571,552.37. Defendant was thereafter sentenced to a term of six months' incarceration concurrent with five years' probation and ordered to pay restitution of $500,000.
The question before the Court is whether the plea and the finding on restitution may stand. We conclude that the plea of guilty was knowing and voluntary but that the procedures followed by the court to establish the amount of restitution did not meet statutory standards. Accordingly, the matter must be remitted to Supreme Court for a hearing to determine the amount of restitution.
Section 60.27 of the Penal Law permits a sentencing court to order restitution to the victim of the crime in addition to any other dispositions authorized by statute. The amount, as the amendment to the statute in 1992 makes clear, may not include sums for pain and suffering or liquidated damages: restitution may be no greater than the sum necessary to compensate the victim for out-of-pocket losses (L. 1992, ch. 618; see, People v. Fuller, 57 N.Y.2d 152, 158, n. 6, 455 N.Y.S.2d 253, 441 N.E.2d 563).
Whether a defendant will be required to make restitution to a crime victim is a matter within the discretion of the court. If it determines that restitution is appropriate, the procedure for fixing the amount is set forth in section 60.27(2). The statute provides that if the record contains the evidence necessary to support a finding of the victim's loss, usually after a trial in which evidence of pecuniary loss has necessarily been proved, the court may fix the amount of restitution based on that evidence. If sufficient evidence does not appear in the record to support a finding of the victim's loss, then the court must conduct a hearing to determine the amount. In either case, if the defendant requests a hearing, the court must conduct one.
Normally the court should determine the amount of restitution at the time of sentencing. This is evident from the directions in the statute that the District Attorney advise the court "at or before" the time of sentencing that the victim seeks restitution or reparation, and that a victim impact statement must be considered before fixing the amount (Penal Law § 60.27[1], [2] ). Inasmuch as a victim's impact statement is usually prepared by the probation department after trial or a plea and before sentencing (see, CPL 390.30[3][b] ), the necessary consequence of that requirement is that restitution is to be determined at or near the time of sentencing, not at the time the plea is entered. Moreover, the statute provides that if a hearing is required it will be subject to the provisions of CPL 400.30, a section which contemplates a hearing on notice before sentencing.
In a case where guilt is established pursuant to a plea agreement rather than a trial, evidence to support the restitution amount generally can only be found in the agreement itself or the minutes of the plea allocution. Although a defendant may make a statement at the plea proceedings sufficient to support a determination of the victim's out-of-pocket loss, thereby eliminating the procedures set forth in the Criminal Procedure Law, in most cases the court will be unable to determine the amount of restitution from the plea record. If restitution is appropriate but cannot be determined at the time of the plea, any sentence promise included within a plea bargain may properly be subject to a hearing on restitution at sentencing (see, Donnino, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 39, Penal Law § 60.27, at 192). The court may seek the assistance of the probation...
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