People v. Visser

• Decision Date: 31 December 1998
• Citation: 256 A.D.2d 1106,692 N.Y.S.2d 868
• Parties: PEOPLE of the State of New York, Respondent, v. James VISSER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 868

692 N.Y.S.2d 868

256 A.D.2d 1106

PEOPLE of the State of New York, Respondent, v. James VISSER, Appellant.

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

Dec. 31, 1998.

Gerald T. Barth by Vanessa Bogan, Syracuse, for Appellant.

William J. Fitzpatrick by James Maxwell, Syracuse, for Respondent

PRESENT: DENMAN, P.J., PINE, PIGOTT, JR., CALLAHAN and BOEHM, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a plea of guilty of forgery in the second degree (Penal Law § 170.10 ). At the plea proceeding, defendant waived indictment and agreed to be prosecuted by a superior court information charging him with one count of forgery in the second degree. The plea was made subject to the agreement that, if defendant paid full restitution by the sentencing date, County Court would impose an indeterminate sentence of incarceration of 2 to 4 years that would run concurrently with a sentence imposed upon defendant on an unrelated conviction in another county; otherwise, the sentence of 2 to 4 years would be consecutive to the sentence imposed on the unrelated conviction. In pleading guilty to forgery in the second degree, defendant admitted that he had forged and cashed a check in the amount of $83.19. After defendant's plea, defense counsel informed the court that "the amount of monies due and owing in restitution may be anywhere from ten to twenty thousand dollars" on numerous unrelated checks. The prosecutor was unable to inform the court how much restitution should be paid. The court stated that it knew restitution would be more than $200, but did not know that it would be $20,000. Defense counsel responded that he "didn't know that we're talking $20,000." The court adjourned the matter for sentencing without specifying the amount of restitution defendant was required to pay by the sentencing date. The only concrete evidence of the loss sustained by the victim of the crime to which defendant pleaded guilty is in the victim impact statement in the presentence report, which states that P & C Foods, in whose store the victim's checks were cashed, was attempting to collect $334.82 from the victim for $274.82 in bad checks and $60 in surcharges.

Defendant did not pay restitution and, at sentencing, the court sentenced him as a second felony offender to an indeterminate term of incarceration of 2 to 4 years and directed that it be consecutive to the sentence imposed on the unrelated conviction. The court did not order restitution as part of the sentence.

The court erred in not determining the amount of restitution that defendant was required to pay before the sentencing date in order to receive the bargained-for concurrent sentence. Defendant himself did not concede facts necessary to establish the amount of restitution (see, People v. Consalvo, 89 N.Y.2d 140, 144-146, 651 N.Y.S.2d 963, 674 N.E.2d 672), and defense counsel's estimate did not bind defendant to make restitution in a specific...