People v. Horne

• Decision Date: 14 March 2002
• Citation: 740 N.Y.S.2d 675,97 N.Y.2d 404,767 N.E.2d 132
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARVA HORNE, Appellant.
• Court: New York Court of Appeals Court of Appeals

97 N.Y.2d 404

767 N.E.2d 132

740 N.Y.S.2d 675

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARVA HORNE, Appellant.

Court of Appeals of the State of New York.

Argued February 7, 2002.

Decided March 14, 2002.

Edward J. Nowak, Public Defender, Rochester (Shirley A. Gorman of counsel), for appellant.

Howard R. Relin, District Attorney, Rochester (Loretta S. Courtney of counsel), for respondent. Eliot Spitzer, Attorney General, Albany (Caitlin J. Halligan, Daniel Smirlock, Robin A. Forshaw and Frank Brady of counsel), amicus curiae.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

GRAFFEO, J.

Defendant was convicted after a jury trial of three counts of offering a false instrument for filing in the first degree arising from her failure to include accurate income information on social services benefit recertification forms she submitted to the Monroe County Department of Social Services. On appeal, she challenges the legality of the restitution order issued as part of her sentence. Because the sentencing court did not err in directing defendant to repay the benefit overpayments she received as a result of filing the false documents, we affirm.

Defendant was charged in a six-count indictment with grand larceny in the third degree, welfare fraud, misuse of food stamps with a value in excess of $1,000 and three counts of offering a false instrument for filing in the first degree. All of the charges related to defendant's alleged receipt of benefit overpayments between July 1995 and January 1997. The People offered evidence at trial that defendant failed to report income she earned from four separate employers on DSS forms and, as a result, obtained more than $16,000 of benefits to which she was not entitled.

The jury returned a verdict convicting defendant of the three counts of offering a false instrument for filing but acquitting her of the three remaining counts of the indictment—grand larceny, welfare fraud and misuse of food stamps. The court provided defendant an opportunity to poll the jury, but she declined. Out of the presence of the jury, defendant moved to set aside the verdict as repugnant, arguing that the jury's determination that she offered false instruments for filing could not be reconciled with her acquittal of the remaining offenses. The jury returned to the courtroom and the court announced, in defendant's presence, that proceedings would resume the next morning because there were "legal problems" which needed to be resolved in the interim. Defendant, who had received Parker warnings (see People v Parker, 57 NY2d 136 [1982]

) prior to trial, did not appear when court reconvened the following day. Defendant's attorney was present but did not offer an explanation for defendant's absence, nor did anyone present comment on her failure to appear. During the brief proceeding, the court declined to set aside the verdict and discharged the jury.

Defendant appeared for sentencing a few weeks later with her attorney. Defense counsel renewed the motion to set aside the verdict as repugnant, which the court again denied. Based on her conviction of three class E felonies, defendant faced a maximum term of imprisonment of 11/3 to 4 years for each count of offering a false instrument for filing (see Penal Law § 70.00 [2] [e]; [3] [b]). In a victim impact statement submitted with the presentence investigation report, DSS requested restitution in the amount of $18,575.13, representing the benefit overpayments defendant received. In addition to an order of restitution, the People sought a sentence of one year in jail or six months home confinement with five years probation. Defense counsel countered that defendant should instead receive a three-year conditional discharge and asserted that restitution was not warranted because defendant had been acquitted of the three "theft offenses." The court sentenced defendant to five years probation and restitution in the amount of $18,575.13, plus a 5% surcharge pursuant to Penal Law § 60.27.¹ Defendant did not request a hearing or otherwise object to the amount of the restitution order.

The Appellate Division affirmed defendant's conviction but modified the sentence by reducing the amount of restitution to $16,942.25 based on the evidence adduced at trial concerning the benefit overpayments. A Judge of this Court granted defendant leave to appeal and we now affirm.

Defendant's primary argument is that the restitution order was illegal under the circumstances of this case. Since 1910, New York courts have been authorized by statute to order restitution as a condition of probation or conditional discharge (see People v Hall-Wilson, 69 NY2d 154 [1987]

; Penal Law § 65.10 [2] [g]). There was no specific authority for the imposition of restitution as a separate sentencing option, however, until 1980 when the Legislature enacted Penal Law § 60.27 (see L 1980, ch 290). This legislation empowered a sentencing court to order restitution in conjunction with any other penalty available in Penal Law article 60, including incarceration or a fine.

Penal Law § 60.27 (1) addresses the related concepts of restitution and reparation, allowing a court to order a defendant to "make restitution of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby." Where an order of restitution or reparation is requested, the sentencing court must determine whether it is warranted and, if so, the proper amount of the award. A hearing must be held if defendant so requests or the court requires additional information related to restitution assessment (see People v Kim, 91 NY2d 407 [1998]

). When factual issues concerning a victim's restitution are disputed, the People bear the burden of proving, by a fair preponderance of the evidence, the facts in support of the restitution request to the satisfaction of the sentencing court (see People v Consalvo, 89 NY2d 140, 145 [1996]).

When Penal Law § 60.27 was first enacted, consideration of whether restitution should be ordered was entirely a discretionary determination in the hands of the sentencing court. The statute was amended in 1983 to mandate that, in every case where there is a request for restitution, the sentencing court must assess the propriety of such an order (L 1983, ch 397). The proponents of this legislation observed that, notwithstanding the enactment of Penal Law § 60.27, "[r]estitution has been vastly under-utilized by courts throughout New York State, while increasingly other states are emphasizing restitution as an important alternative or complement to penalties such as jail terms" (Assembly Sponsor's Mem, 1983 NY Legis Ann, at 172). The bill sponsors emphasized that restitution serves the dual, salutary 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 (see id.). This Court has expressed similar sentiments, stating 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" (Hall-Wilson, 69 NY2d at 157 [citations omitted]).

The State's policy of encouraging restitution was broadened in 1985 with the adoption of comprehensive legislation requiring that victim impact statements be included in presentence investigation reports prepared to assist the trial courts in sentence determinations (L 1985, ch 14). The legislation required prosecutors to provide copies of any victim impact statements to victims prior to sentencing to afford victims and their families an opportunity to correct any omissions or discrepancies (see CPL 390.50 [2] [b]). The Attorney General, who requested introduction of the bill, asserted that "victim access to impact statements will help ensure that the statements will convey the full impact which the crime had on the victim," and expressed the hope that this would increase the number and size of restitution sentences (Mem of Dept of Law, Bill Jacket, L 1985, ch 14, at 13).

In 1992, the Legislature took further action to strengthen the restitution statutory scheme by creating a presumption in favor of restitution (see L 1992, ch 618). Where restitution is requested, Penal Law § 60.27 now states that the sentencing court "shall" order restitution in addition to any other sentence imposed "unless the interests of justice dictate otherwise" (Penal Law § 60.27 [1]). If a court declines to issue such an order, its reasons for doing so must be articulated on the record (Penal Law § 60.27 [1]). The legislation also added an expansive definition of the term "victim" (see Penal Law § 60.27 [4] [b]) and directed that every victim be informed of the right to seek restitution before an offender is sentenced (see Executive Law § 641 [3] [d]; CPL 390.30). The most recent amendments of Penal Law § 60.27 clarified the breadth of the class of victims who may obtain restitution, adding specific references to public entities who incur expenses cleaning an arson site (see L 1996, ch 310, as adding Penal Law § 60.27 [10]) or responding to a false bomb scare (L 1999, ch 207, as adding Penal Law § 60.27 [11]).

Against this backdrop of New York's long-standing policy of promoting, encouraging and facilitating the use of restitution to reimburse victims for monetary and other losses caused by criminal conduct, we assess defendant's claim that the sentencing court erred in directing restitution.

In addition to any of the other dispositions authorized in Penal Law article 60, Penal Law § 60.27 (1) provides that "the court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed upon a person convicted of an...