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People v. Mahar

Supreme Court of New York, Third Department

September 26, 2013

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
ERICA M. MAHAR, Appellant.

Calendar Date: September 9, 2013.

Pope & Schrader, LLP, Binghamton (Kurt D. Schrader of counsel), for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: Peters, P.J., Stein, McCarthy and Spain, JJ.

MEMORANDUM AND ORDER

PETERS, P.J.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered May 18, 2010, which resentenced defendant following her conviction of the crime of grand larceny in the fourth degree.

Pursuant to a negotiated plea agreement, defendant waived indictment and pleaded guilty in August 2008 to a reduced count of grand larceny in the fourth degree in satisfaction of a superior court information with the understanding that she would be sentenced to, among other things, five years of probation and ordered to pay $9, 700 in restitution related to her theft of jewelry. Following defendant's plea, sentencing was postponed several times due principally to defendant's drug treatment commitments and attempts to ascertain the correct amount of restitution from the victim. Notably, in October 2008, County Court received the presentence investigation report, which included a request for restitution from the victim stating that the value of the stolen jewelry was much greater than the amount referenced in the plea agreement. Ultimately, defendant was sentenced on September 14, 2009 to, among other things, five years of probation and ordered to pay restitution in the amount of $2, 500. Subsequently, the court determined that the restitution amount was incorrect, [1] and it notified defendant that a restitution hearing would ensue. That hearing was held — over defendant's objection — on May 7, 2010, at which time the victim testified in detail about the stolen items, and numerous receipts and appraisals were submitted into evidence that exceeded the original amount of restitution. As a result, on May 18, 2010, the court resentenced defendant by changing the restitution amount to $28, 652.81, plus applicable fees and surcharges, [2] and it amended the terms of her probation accordingly. This appeal ensued. [3]

Initially, we are unpersuaded by defendant's claim that County Court lacked the authority to amend the amount of restitution after defendant's original sentencing in September 2009. Notably, "in the normal course of events, the People must 'advise the court at or before the time of sentencing that the victim seeks restitution... and the amount of restitution .. sought' (Penal Law § 60.27 [1]), and the trial court must determine the amount of restitution at the time of sentencing" (People v Naumowicz, 76 A.D.3d 747, 749 [2010]). Nevertheless, "the court's continuing jurisdiction to impose restitution has been recognized where the claim for restitution is raised at or prior to sentencing and the modification or correction of the sentence occurs within a reasonable time thereafter" (id. at 749; see generally People v Morrishaw, 92 A.D.3d 1088, 1088-1089 [2012], lv denied 18 N.Y.3d 996 [2012]; People v Russo, 68 A.D.3d 1437 [2009]).

Here, we do not find the delay between defendant's September 2009 sentencing and the modification of the restitution order in September 2010 following a hearing unreasonable given the various factors presented by this case (see People v Knowles, 293 A.D.2d 770, 771 [2002]). "Nonetheless, [a] sentencing court may not impose a more severe sentence than one bargained for without providing [the] defendant the opportunity to withdraw his [or her] plea" (People v Naumowicz, 76 A.D.3d at 750 [internal quotation marks and citation omitted]). Thus, in light of the fact that the amended restitution amount unquestionably exceeds the total amount to which defendant agreed at the time of her plea and she seeks, among other things, vacatur of that plea herein, we deem it appropriate to remit the matter for the purpose of allowing defendant the opportunity to either accept the enhanced restitution amount or withdraw her plea (see id.; People v Brown, 198 A.D.2d 901 [1993]).

Stein, McCarthy and Spain, JJ., concur.

ORDERED that the judgment is modified, on the law, by vacating the amended restitution order imposed; matter remitted to the County Court of Broome County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.


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