People v. Wilson

• Decision Date: 19 February 2009
• Docket Number: 100880.
• Citation: 59 A.D.3d 807,872 N.Y.S.2d 758,2009 NY Slip Op 01252
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JERMAINE L. WILSON, Appellant.
• Court: New York Supreme Court — Appellate Division

59 A.D.3d 807

872 N.Y.S.2d 758

2009 NY Slip Op 01252

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JERMAINE L. WILSON, Appellant.

100880.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided February 19, 2009.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered January 8, 2007, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

MALONE Jr., J.

In satisfaction of a three-count indictment, defendant pleaded guilty to burglary in the second degree, waived his right to appeal and was sentenced, as a second felony offender, to six years in prison and five years of postrelease supervision. Following a hearing, at which one of the victims appeared and testified, County Court ordered that defendant pay restitution in the amount of $10,860. This appeal by defendant ensued.

As we noted when this matter was last before us, defendant's challenge to the amount of restitution ordered is not precluded by his valid waiver of the right to appeal (50 AD3d 1395 [2008]; see People v Durant, 41 AD3d 976, 977 [2007]). Turning to the merits, in the context of the restitution hearing, "the People bore the burden of proving the victim's out-of-pocket expenses by a preponderance of the evidence" (People v Russell, 41 AD3d 1094, 1096 [2007], lv denied 10 NY3d 964 [2008]). In this regard, one of the victims testified that the safe stolen from his home contained $10,000 in cash, a gold bracelet valued at approximately $400, a recently purchased video camera valued at approximately $450, two baseball cards and miscellaneous watches and paperwork. Defendant admitted that the safe contained roughly $1,600 in cash, paperwork and two baseball cards but denied finding a video camera or any jewelry. County Court ultimately awarded restitution in the amount of $10,860, representing $10,000 for the missing cash, $430 for the video camera, $400 for the gold bracelet and $30 for the miscellaneous watches.

While sworn testimony at a restitution hearing indeed qualifies as evidence of a victim's out-of-pocket expenses (see id. at 1096), which County Court, in turn, plainly is entitled to credit, we nonetheless are not persuaded that the victim's conclusory and otherwise unsubstantiated testimony as to the loss sustained here is sufficient to discharge the People's burden of proof. No receipts or invoices were provided for either the video camera or the gold bracelet,...