People v. PING LOU

• Citation: 299 A.D.2d 559,751 N.Y.S.2d 44
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>HONG PING LOU, Appellant.
• Decision Date: 25 November 2002
• Court: New York Supreme Court Appellate Division

299 A.D.2d 559

751 N.Y.S.2d 44

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.HONG PING LOU, Appellant.

Decided November 25, 2002.

Florio, J.P., S. Miller, Adams and Crane, JJ., concur.

Ordered that the judgment is reversed, on the law, the defendant's motion to withdraw her plea of guilty is granted, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

The defendant, who worked as a live-in housekeeper for the complainant and her husband, allegedly stole thousands of dollars worth of art, antiques, and other property from her employers. When confronted by the complainant, the defendant allegedly returned property valued at $100,000, leaving items missing valued in excess of $80,000.

The defendant initially pleaded guilty to grand larceny in the third degree with a promised sentence of five years probation plus her confession of judgment in the amount of not more than $100,000. However, after the defendant moved to withdraw her plea, that plea agreement was supplanted by a different plea agreement to a misdemeanor charge of petit larceny with a sentence of three years probation and the confession of judgment. Ultimately, neither plea agreement was finalized, as the value of the allegedly stolen property not returned was never determined. When negotiations broke down due to the defendant's refusal to sign a confession of judgment, and despite the prosecutor's acquiescence to the defendant's demands to go to trial, the Supreme Court invoked the initial felony plea and imposed a sentence of five years probation, and issued, without the defendant's signature, a confession of judgment in an amount not to exceed $100,000. This was error.

Contrary to the People's contentions, the defendant's unelaborated waiver of appellate review, included as a component of the initial plea of guilty, was ineffective (see People v Brown, 296 AD2d 860; People v Kemp, 255 AD2d 397). In any event, the basis of the defendant's appellate argument is that her plea was involuntary. "A defendant always retains the right to challenge * * * the voluntariness of the plea" (People v Goss, 286 AD2d 180, 181-182, quoting People v Seaberg, 74 NY2d 1, 10). Moreover, "an unfair bargain or one coerced to conceal error or misconduct * * * is subject to vacatur on direct appeal or by appropriate posttrial proceedings" (People v Seaberg, supra at 11; see People v Holman, 89 NY2d 876, 878).

"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 * * * 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" (People v Consalvo, 89 NY2d 140, 144-145; see People v Bauer, 229 AD2d 502). Pursuant to Penal Law § 60.27 (2), upon a request by the defendant, the court must conduct a hearing to determine the appropriate amount of restitution (see People v Butti, 294 AD2d 591, lv denied 98 NY2d 729; People v Oehler, 278 AD2d 807; People v Jackson, 261 AD2d 636). When a court orders restitution, it must set a fixed monetary value (see People v Dickson, 260 AD2d 931).

In this case, although the defendant requested a hearing, the Supreme Court did not hold a hearing, as it clearly wanted the parties to negotiate a settlement on the issue of the actual amount of restitution to be made. However, the parties were unable to reach an agreement and the amount of restitution owed by the defendant was never determined. The...