People v. Fuller

• Court: New York Court of Appeals
• Writing for the Court: FUCHSBERG; COOKE; GABRIELLI
• Citation: 455 N.Y.S.2d 253,57 N.Y.2d 152,441 N.E.2d 563
• Parties: , 441 N.E.2d 563 The PEOPLE of the State of New York, Respondent, v. Patricia FULLER, Appellant.
• Decision Date: 19 October 1982

Page 253

455 N.Y.S.2d 253 57 N.Y.2d 152, 441 N.E.2d 563 The PEOPLE of the State of New York, Respondent,
v.
Patricia FULLER, Appellant. Court of Appeals of New York. Oct. 19, 1982.

Page 254

Shirley Werner Kornreich, The Legal Aid Society--Criminal Appeals Bureau and William E. Hellerstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., New York City (Debora K. Grobman and Mark Dwyer, Asst. Dist. Atty., New York City, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

This appeal, here by leave of a Judge of this court, presents us with our first opportunity to construe Penal Law sections authorizing the imposition of "restitution" or "reparation" as part of a sentence (Penal Law, §§ 60.27, 65.10, subd. 2, par. ). As recently amended, these statutes, among other things, reflect both a more flexible penological approach and a heightened awareness of the "concerns and needs of the victims of crime" (Hechtman, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 39, Penal Law, § 60.27). In particular, we are asked to decide whether, under the statutory scheme, a sentencing court, broad as its discretion to mold an appropriate disposition otherwise may be, is free to delegate the power to fix the conditions of such restitution or reparation to the Probation Department. We now hold that it is not.

A second question raised is whether, under the facts and circumstances in this case, a 21-month lapse of time between the discovery of the defendant's criminal conduct and the time of her arrest violated her due process right to prompt prosecution. We find this issue to be without merit.

Upon her plea of guilty, the defendant, Patricia Fuller, stands convicted of grand larceny in the second degree (Penal Law, § 155.35). This stemmed from her unlawful receipt, from September, 1973 to December, 1975, of $5,994 in public assistance moneys, in violation of section 145 of the Social Services Law by concealing the fact that she then was gainfully employed. Her conduct first came to the attention of public authorities when it was discovered by the Social Services Department in December, 1975, but the department did not so inform the District Attorney until December, 1976 and she was not arrested until September 20, 1977.

It was on this delay that the defendant predicated her due process claim, urging it initially on an unsuccessful pretrial motion. Her guilty plea followed. At the sentencing, the trial court imposed a five-year term of probation and directed the defendant to make restitution "in the amount of her defalcation in a manner consistent with that to be set by the probation department". ¹ In implementing this delegation, the department thereupon required the defendant to sign a confession of judgment in which she acknowledged a debt of $7,611.82 to the Social Services Department of the City of New York. That sum, substantially in excess of the $5,994 covered by the indictment, was arrived at by including additional benefits received during the 15 months following the completion of the crime charged. ²

Page 255

On these facts, turning first to her restitution point, we note, preliminarily, that defendant registered no objection, either at sentence, by way of postjudgment motion or even on her appeal to the Appellate Division, 83 A.D.2d 994, 443 N.Y.S.2d 672, to the fact that the Probation Department rather than the sentencing court passed on the amount and manner in which the restitution requirement was to be satisfied. Failure to challenge a procedure at a time when a trial court still has an opportunity to take effective correction action as a general rule will forfeit the right of review by this court (CPL 470.05, subd. 2; People v. Drummond, 40 N.Y.2d 990, 391 N.Y.S.2d 67, 359 N.E.2d 663, cert. den. sub nom. New York v. Luis J., 431 U.S. 908, 97 S.Ct. 1706, 52 L.Ed.2d 394). But it has long been the law that the "essential nature" of the right to be sentenced as provided by law, though not formally raised at the trial level, preserves a departure therefrom for review in this court (People v. Craig, 295 N.Y. 116, 120, 65 N.E.2d 192; People v. Bradner, 107 N.Y. 1, 4-5, 13 N.E. 87; Cohen and Karger, Powers of the New York Court of Appeals § 199, pp. 750-751). ³

Proceeding then to substantive consideration of the legality of the delegation of the restitution element of the defendant's sentence, we observe that the power of a court to order offenders to compensate the victims of their crimes is not new to the criminal justice system. Provision for a court to direct restitution may be found in our early probation statutes at least as far back as 1910 (Code Crim.Pro., § 483, subd. 2; § 932) and its use has long been advocated by a variety of standard-setting bodies (National Advisory Commission on Criminal Justice Standards and Goals, Standards on Probation and Parole, § 5.4, subd. 2; § 5.5, subd. 3; Model Sentencing Act, § 9; National Commission on Reform of Federal Criminal Laws, Study Draft § 3302; American Bar Association, Projects on Minimum Standards for Criminal Justice, Standards Relating to Probation, § 3.2, subds. par ALI Model Penal Code, § 301.1, subd. par cf. Bradford v. United States, 228 U.S. 446, 33 S.Ct. 576, 57 L.Ed.2d 912). ⁴ Therefore, though the unfortunate current prevalence of crime has drawn renewed and intensified attention to sentencing in general and compensation for crime victims in particular, ⁵ the latter has long been an integral part of the former.

Consistent with these developments, New York's...