People v. Vella
| Decision Date | 07 October 1991 |
| Citation | 176 A.D.2d 768,574 N.Y.S.2d 825 |
| Parties | The PEOPLE, etc., Respondent, v. Patrick VELLA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Matthew Muraskin, Hempstead (Kent V. Moston, A. Kathleen Tomlinson and Thomas D. Jaycox, of counsel), for appellant.
Denis Dillon, Dist. Atty., Mineola (Bruce E. Whitney and Matthew D. Sansverie, of counsel), for respondent.
Before BRACKEN, J.P., and SULLIVAN, ROSENBLATT and O'BRIEN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Nassau County (Wexner, J.), rendered January 25, 1989, convicting him of assault in the second degree, unauthorized use of a motor vehicle in the third degree, criminal mischief in the second degree, and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by deleting the provision thereof directing the payment of restitution in the sum of $3,144.33; as so modified the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, for a hearing and new determination concerning the proper amount of restitution and the manner of payment thereof.
The defendant asserts that the court erred in relying on his probation report in fixing the amount of restitution. We agree. The People's contention that the defendant did not preserve this claim for appellate review is without merit (see, People v. Miller, 133 A.D.2d 784, 520 N.Y.S.2d 67), since the defendant's right to be sentenced as prescribed by law is one of "essential nature" which need not be preserved (People v. Pfaudler, 164 A.D.2d 873, 559 N.Y.S.2d 379; People v. Andrea, 141 A.D.2d 740, 743, 529 N.Y.S.2d 837).
At bar, the court directed the defendant to make restitution in the amount of $3,144.33. The record reveals that the defendant caused damage to an automobile in the amount of $1,989. This was established by the testimony of an automobile body repairman, and thus restitution in the sum of $1,989 would have been proper. However, the remainder of the restitution amount imposed, representing the victim's medical expenses, was improperly ascertainable solely from the probation report (People v. Kronenberg, 167 A.D.2d 483, 562 N.Y.S.2d 154). The court also erred in failing to inquire whether the defendant had the means to pay the amount in issue (People v. Barnes, 135 A.D.2d 825, 522 N.Y.S.2d 930). Accordingly, we conclude that the defendant was deprived of his right to be...
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