People v. Stevens

• Decision Date: 06 January 2011
• Citation: 914 N.Y.S.2d 412,80 A.D.3d 791
• Parties: The PEOPLE of the State of New York, Respondent, v. Robin S. STEVENS Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 412

80 A.D.3d 791

The PEOPLE of the State of New York, Respondent,

v.Robin S. STEVENS Jr., Appellant.

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

Jan. 6, 2011.

Christopher Obstarczyk, Albany, for appellant.

Mark D. Suben, District Attorney, Cortland (Christopher I. Simser Sr. of counsel), for respondent.

Before: PETERS, J.P., SPAIN, ROSE, LAHTINEN and McCARTHY, JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered March 12, 2009, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the third degree and grand larceny in the fourth degree.

After defendant sold cocaine, an indictment was handed up charging him with one count of criminal sale of a controlled substance in the third degree. A separate indictment charged him with two counts of grand larceny in the fourth degree for his theft of two shotguns. Subsequently, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree and one count of grand larceny in the fourth degree in satisfaction of both indictments. Pursuant to that plea, defendant executed waivers of appeal. County Court thereafter imposed concurrent sentences of two years in prison followed by two years of postrelease supervision for the criminal sale of a controlled substance conviction and 1 1/3 to 4 years in prison for the grand larceny conviction. County Court also ordered defendant to pay restitution to the victim of the grand larceny. Defendant appeals.

Defendant's valid waiver of appeal precludes us from addressing his argument that his agreed-upon sentence is harsh and excessive ( see People v. Houck, 74 A.D.3d 1476, 1477, 901 N.Y.S.2d 879 [2010]; People v. Walley, 63 A.D.3d 1284, 1286, 881 N.Y.S.2d 203 [2009] ). While surviving hiswaiver of the right to appeal, defendant's contention that his plea was rendered involuntary by the ineffective assistance of counsel is unpreserved for our review due to defendant's failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Davis, 74 A.D.3d 1490, 1490, 903 N.Y.S.2d 756 [2010], lv. denied 15 N.Y.3d 850, 909 N.Y.S.2d 27, 28, 935 N.E.2d 819, 820 [2010]; People v. Volfson, 69 A.D.3d 1123, 1124, 893 N.Y.S.2d 376 [2010]; People v. Scitz, 67 A.D.3d 1251, 1251-1252, 889 N.Y.S.2d 306 [2009] ).

County Court erred by setting a restitution amount without conducting a restitution hearing because there was insufficientevidence to determine the victim's loss. Because the plea agreement required defendant to pay restitution but did not contain the specific amount to be paid, defendant's waiver of his right to appeal does not preclude him from challenging the restitution order ( see People v. Empey, 73 A.D.3d 1387, 1388, 901 N.Y.S.2d 756 [2010], lv. denied 15 N.Y.3d 804, 908 N.Y.S.2d 164, 934 N.E.2d 898 [2010]; People v. Thomas, 71 A.D.3d 1231, 1232, 896 N.Y.S.2d 264 [2010], lv. denied 14 N.Y.3d 893, 903 N.Y.S.2d 781, 929 N.E.2d 1016 [2010] ).¹ Defendant preserved this challenge when counsel questioned the amount of restitution at sentencing ( see People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002]; People v. Empey, 73 A.D.3d at 1389, 901 N.Y.S.2d 756; People v. Thomas, 71 A.D.3d at 1232, 896 N.Y.S.2d 264).

As to the merits of defendant's argument, a restitution hearing must be held where the record lacks sufficient evidence for a court to determine the amount of restitution ordered or the defendant requests such a hearing ( see Penal Law § 60.27[2] ). A trial court may not rely entirely on the Probation Department's recommendations when ordering restitution ( see People v. Fuller, 57 N.Y.2d 152, 158-159, 455 N.Y.S.2d 253, 441 N.E.2d 563 [1982]; People v. Consalvo, 89 N.Y.2d 140, 145, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996]; People v. Pelkey, 63 A.D.3d 1188, 1190, 879 N.Y.S.2d 842 [2009], lv. denied 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020 [2009] ). Here, County Court did just that by ordering "restitution in the amount of $1,460.96, per the probation report." The only record support for this amount came from the presentence investigation report, which was based solely on a letter received from the victim of the larceny. No other evidence is contained in the record to support the amount of damages requested by the victim. In fact, the victim claimed that he was entitled to $700 to have the barrel of his gun replaced and new fiber optic sights put on, but the felony complaint alleged that defendant stole a shotgun with a slug barrel and glow sights valued at approximately $600. Not only is it unclear why the barrel needs to be replaced but, at sentencing, defense counsel aptly noted that the value of...