        SUPREME COURT OF THE STATE OF NEW YORK
          Appellate Division, Fourth Judicial Department

947
KA 10-01092
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID DILLON, DEFENDANT-APPELLANT.


JOHN A. HERBOWY, ROME, FOR DEFENDANT-APPELLANT.

JOHN H. CRANDALL, DISTRICT ATTORNEY, HERKIMER, FOR RESPONDENT.


     Appeal from a judgment of the Herkimer County Court (Patrick L.
Kirk, J.), rendered March 25, 2010. The judgment convicted defendant,
upon his plea of guilty, of criminal mischief in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal mischief in the third degree (Penal Law §
145.05 [2]), defendant contends that his plea was not knowing,
intelligent and voluntary because he did not understand the plea
proceedings or the direct consequences of his plea. Although that
contention survives defendant’s waiver of the right to appeal,
defendant failed to preserve his contention for our review by failing
to move to withdraw the plea or to vacate the judgment of conviction
(see People v Watkins, 77 AD3d 1403, lv denied 15 NY3d 956; People v
Baker, 49 AD3d 1293, lv denied 10 NY3d 932). In any event,
defendant’s contention is without merit inasmuch as the record
establishes that the plea was knowingly, intelligently and voluntarily
entered (see generally People v Mullen, 77 AD3d 686; People v Sartori,
8 AD3d 748, 749).

     We conclude that the People established by a preponderance of the
evidence that the two victims sustained out-of-pocket losses in the
amounts of $28,543.50 and $9,460, respectively (see People v Ford, 77
AD3d 1176, 1176-1177, lv denied 17 NY3d 816; People v Butler, 70 AD3d
1509, lv denied 14 NY3d 886; People v Katovich, 238 AD2d 751). By
failing to request a hearing on the issue whether he had the ability
to pay the amount of restitution ordered by County Court, defendant
failed to preserve for our review his further contention that the
court failed to consider his ability to pay the restitution (see Penal
Law § 65.10 [2] [g]; see generally Ford, 77 AD3d at 1177; People v
Passalacqua, 43 AD3d 964, lv denied 9 NY3d 1037). In any event, the
record establishes that the presentence report reviewed by the court
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                                                           KA 10-01092

contained information with respect to defendant’s education history
and employment income, and thus we conclude that the court considered
defendant’s ability to pay the restitution pursuant to Penal Law §
65.10 (2) (g) (see People v Christman, 265 AD2d 856, lv denied 94 NY2d
878). We note that defendant may apply for resentencing pursuant to
CPL 420.10 (5) and, in the event that the court determines that
defendant is unable to pay the restitution “despite sufficient good
faith efforts to acquire the resources to do so . . .[, it] must
consider measures of punishment other than imprisonment” (People v
Amorosi, 96 NY2d 180, 184; see generally Tate v Short, 401 US 395,
399).

     All concur except CARNI, J., who dissents in part and votes to
modify in accordance with the following Memorandum: I respectfully
disagree with the conclusion of my colleagues that defendant failed to
preserve for our review his contention that County Court failed to
consider his ability to pay the restitution. I also disagree that the
record establishes that the court considered defendant’s ability to
pay the restitution in the total amount of $39,903.68. Therefore, I
dissent in part.

     Upon his conviction of criminal mischief in the third degree
(Penal Law § 145.05 [2]), defendant was sentenced to five years of
probation and ordered to pay restitution to two victims in the total
amount of $39,903.68, including the 5% surcharge. Defendant’s
sentence did not include an incarceration component. With respect to
the issue of preservation, I note that the majority relies upon People
v Ford (77 AD3d 1176, lv denied 17 NY3d 816), which did not involve a
defendant who was sentenced to probation and ordered to pay
restitution as a condition of such probationary sentence but, rather,
the defendant was sentenced to an aggregate term of imprisonment of 2
to 4 years and ordered to pay restitution. Also, the majority relies
upon People v Passalacqua (43 AD3d 964, lv denied 9 NY3d 1037), which
provides no indication of the nature of the sentence imposed in
conjunction with restitution. The nature of the sentence imposed is
critical to the preservation analysis because Penal Law § 65.10,
entitled “Conditions of probation and of conditional discharge,”
permits the court to impose restitution as a condition of the sentence
of probation only “in an amount [defendant] can afford to pay” (§
65.10 [2] [g]). That restitution provision applies exclusively to a
sentence of probation with restitution as a condition thereof (see
id.). It is well settled that “the ‘essential nature’ of the right to
be sentenced as provided by law, though not formally raised at the
trial level, preserves a departure therefrom for [our] review” (People
v Fuller, 57 NY2d 152, 156, quoting People v Craig, 295 NY 116, 120;
see People v Aquino, 83 AD3d 1532).

     Turning to the merits of defendant’s contention concerning
restitution, the record does not contain any evidence that the court
considered defendant’s ability to pay the restitution. The court’s
written restitution decision is silent with respect to that issue. I
cannot agree that we should search the record on appeal, as the
majority has done, to reach the conclusion that the court considered
defendant’s ability to pay. Indeed, even if it was appropriate to
                                 -3-                           947
                                                           KA 10-01092

search the record here, in doing so it becomes evident that the court
could not have considered defendant’s ability to pay the restitution.
The presentence report establishes that defendant’s last employment
was as a laborer earning $8.00 per hour in a 25 hour work week. The
court’s restitution decision filed on March 29, 2010 requires
defendant to pay a final payment of $39,903.68 on or before January 9,
2015. There being no rational relationship between that requirement
and defendant’s ability to pay it, I cannot conclude that the court
considered defendant’s ability to pay as required by Penal Law § 65.10
(2) (g).

     Therefore, I would modify the judgment by vacating the amount of
restitution ordered and remit the matter to County Court for a new
hearing to determine the amount of restitution in accordance with
defendant’s ability to pay that amount.




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
