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The People of the State of New York v. Evan Wade Pearson

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


April 1, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
EVAN WADE PEARSON,
APPELLANT.

Appeal from a sentence of the Justice Court of the Village of Tuxedo Park, Orange County (David L. Levinson, J.), imposed June 18, 2009.

People v Pearson (Evan)

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 1, 2011

PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ

The sentence, insofar as appealed from as limited by the brief, required defendant to pay restitution in the sum of $44,500 upon his conviction of petit larceny.

ORDERED that the sentence, insofar as appealed from, is affirmed.

Defendant pleaded guilty to one count of petit larceny (Penal Law § 155.25) and was promised a sentence which included, among other things, restitution in an amount to be determined at a restitution hearing. Following the restitution hearing, defendant was sentenced to probation and a fine, and was ordered to pay restitution in the sum of $44,500. The only issue raised on appeal is whether the amount awarded as restitution is supported by sufficient evidence.

Penal Law section 60.27 (1) authorizes a court to order, as part of a sentence imposed, that the defendant make reparation to the victim for the actual out-of-pocket loss caused by the defendant's violation. Whenever a court requires restitution or reparation to be made, it must make a finding as to the dollar amount of the fruits of the offense and for the actual out-of-pocket loss to the victim caused by the offense (see Penal Law § 60.27 [2]; People v Consalvo, 89 NY2d 140, 144 [1996]; People v Ayers, 45 AD3d 1290 [2007]; People v Tzitzikalakis, 25 AD3d 404, 408 [2006], affd 8 NY3d 217 [2007]). When a hearing is held to determine the amount of restitution, the "People bear the burden of proving, by a fair preponderance of the evidence, the facts in support of the restitution request to the satisfaction of the sentencing court" (People v Horne, 97 NY2d 404, 410-411 [2002]). In addition, "[a]ny relevant evidence is admissible unless privileged regardless of its admissibility under the rules of evidence" (People v Consalvo, 89 NY2d at 145; see also CPL 400.30 [4]; People v Francis L.M., 278 AD2d 919 [2000]; People v Chaulk, 192 AD2d 669 [1993]). In order to establish the out-of-pocket loss in a simple larceny case, the victim may testify as to the value of the stolen property (see People v Tzitzikalakis, 25 AD3d at 409).

Contrary to defendant's contention, the Justice Court was entitled to rely upon hearsay evidence in determining the complainant's out-of-pocket loss (see CPL 400.30 [4]; People v Tzitzikalakis, 25 AD3d at 409; People v Francis L.M., 278 AD2d 919; People v Chaulk, 192 AD2d 669). In our view, the Justice Court's determination was supported by a preponderance of the evidence. As defendant's remaining contentions lack merit, the sentence, insofar as appealed from, is affirmed.

Nicolai, P.J., Molia and LaCava, JJ., concur.

Decision Date: April 01,2011

20110401

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