         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1605
KA 09-02125
PRESENT: MARTOCHE, J.P., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROY HOOTEN, ALSO KNOWN AS ROY D. HOOTEN,
DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered July 13, 2009. The judgment ordered defendant
to pay restitution in the amount of $20,841.08.

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposes a sentence of incarceration is unanimously dismissed and
the judgment is otherwise modified on the law by vacating the amount
of restitution ordered and ordering defendant to pay restitution in
the amount of $19,516.77 and as modified the judgment is affirmed.

     Memorandum: In appeal No. 2, defendant appeals from a judgment
convicting him upon his plea of guilty of attempted burglary in the
third degree (Penal Law §§ 110.00, 140.20) and imposing a sentence of
incarceration and, in appeal No. 1, he appeals from a judgment that
again imposes the identical sentence of incarceration and further
orders him to pay restitution in the amount of $20,841.08. Addressing
first appeal No. 2, we note that defendant’s sole contention is that
the sentence is unduly harsh and severe, and we reject that
contention. We agree with defendant in appeal No. 1, however, that
the certificate of conviction reflects an amount of restitution that
conflicts with the amount to which defendant stipulated. At the
restitution hearing, County Court indicated that one of the
restitution claims had been withdrawn, reducing the total amount of
restitution requested by the People. Defense counsel then indicated
that defendant was prepared to stipulate to restitution in the amount
of $18,587.40, based on the remaining claims, together with the 5%
surcharge of $929.37, for a total restitution figure of $19,516.77.
The People agreed to that amount and the court accepted the
stipulation. We therefore modify the judgment in appeal No. 1 by
vacating the amount of restitution ordered and ordering defendant to
                                 -2-                          1605
                                                         KA 09-02125

pay restitution in the amount of $19,516.77 in accordance with the
stipulation. We dismiss the appeal from the judgment in appeal No. 1
insofar as it imposes a sentence of incarceration inasmuch as we have
addressed that issue in appeal No. 2.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
