People v. Skerritt

• Decision Date: 07 May 2015
• Docket Number: 106153
• Citation: 8 N.Y.S.3d 709,2015 N.Y. Slip Op. 03882,128 A.D.3d 1110
• Parties: The PEOPLE of the State of New York, Respondent, v. Patricia E. SKERRITT, Appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1110

8 N.Y.S.3d 709

2015 N.Y. Slip Op. 03882

The PEOPLE of the State of New York, Respondent

v.Patricia E. SKERRITT, Appellant.

106153

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

May 7, 2015.

David E. Woodin, Catskill, for appellant.

Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, ROSE and DEVINE, JJ.

Opinion

DEVINE, J.

Appeal from a judgment of the County Court of Greene County (Tailleur, J.), rendered July 12, 2013, convicting defendant upon her plea of guilty of the crime of burglary in the second degree.

Defendant was charged in an indictment with one count of burglary in the second degree, arising out of a February 1, 2012 incident wherein she and an accomplice broke into a residence with larcenous intent. She pleaded guilty as charged and waived her right to appeal upon the understanding that, while she would not be prosecuted for any additional burglaries that she admitted to committing, she would be obliged to pay any restitution owed as a result of them. Defendant thereafter entered into a stipulation that did not require restitution for the offense that she had pleaded guilty to, but did commit her to pay restitution for two additional burglaries. County Court sentenced her to a prison term of five years to be followed by postrelease supervision of five years, and ordered her to pay restitution in the amount of $30,467.48. Defendant now appeals, asserting that the award of restitution was illegal.

Initially, defendant is challenging the legality of a component of her sentence, an argument that is not barred by either her consent to the amount of restitution imposed or her appeal waiver (see People v. Pump, 67 A.D.3d 1041, 1042, 889 N.Y.S.2d 105 [2009], lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010] ; People v. Casiano, 8 A.D.3d 761, 762, 779 N.Y.S.2d 259 [2004] ). As to the merits, Penal Law § 60.27 permits a trial court to require restitution arising from “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” (Penal Law § 60.27[4] [a] ; see People v. Horne, 97 N.Y.2d 404, 412, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] ; People v. Diallo, 88 A.D.3d 1152, 1154, 931 N.Y.S.2d 444 [2011], lv. denied 18 N.Y.3d 993, 945 N.Y.S.2d 648, 968 N.E.2d 1004 [2012] ). The sole accusatory instrument here was the one-count indictment to which defendant pleaded guilty, and there is no dispute that restitution was ordered for crimes bearing no connection to the burglary for which defendant was convicted (compare People v. Palella, 148 A.D.2d 838, 838–839, 539 N.Y.S.2d 111 [1989], lv. denied 74 N.Y.2d 795, 545 N.Y.S.2d 556, 544 N.E.2d 234 [1989] ; People v. Prewett, 126 A.D.2d 86, 89–90, 513 N.Y.S.2d 282 [1987], lv. dismissed 70 N.Y.2d 693, 518 N.Y.S.2d 1028, 512 N.E.2d 554 [1987] ). The People thus concede, and we agree, that the restitution portion of defendant's sentence must be vacated (see People v. Casiano, 8 A.D.3d at 762–763, 779 N.Y.S.2d 259 ; People v. Miller, 251 A.D.2d 747, 748, 674 N.Y.S.2d 471 [1998] ). Inasmuch as the parties are in agreement that further proceedings are...