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

412
KA 14-00659
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TRACY L. BROOKS, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Craig J.
Doran, J.), rendered November 13, 2013. The judgment convicted
defendant, upon her plea of guilty, of grand larceny in the third
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the amount of restitution
to $49,959.98, and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting her, upon her
plea of guilty, of grand larceny in the third degree (Penal Law
§ 155.35 [1]), defendant challenges only the amount of restitution
that she was directed to pay following a hearing conducted pursuant to
Penal Law § 60.27 (2) and CPL 400.30. Defendant, who admitted to
stealing from the parent-teacher organization of which she had been
treasurer, was ordered to pay restitution in the amount of $52,437.48,
minus an immediate credit for $25,112 paid at sentencing, plus a 10%
restitution surcharge apparently computed on the unpaid amount of
restitution.

     County Court did not err in refusing to give defendant credit for
sums she deposited in the victim’s bank account. Defendant made no
attempt to demonstrate that the money she deposited in the bank was
not already the victim’s money. The court did not err in crediting
the forensic accountant’s opinion, which was based on an estimate of
anticipated sales derived from invoices related to the victim’s
fundraising endeavors, that defendant’s embezzlement included a
fundraising “shortfall” of $17,569. In addition, the court did not
err in refusing to grant defendant any credit for checks allegedly
signed by her husband, or in refusing to credit defendant for
$1,632.30 paid to vendors, i.e., transactions for which the forensic
accountant could not find any authorization or backup documentation
                                 -2-                           412
                                                         KA 14-00659

concerning what was purchased and why. “The People met their burden
of establishing the amount of restitution by a preponderance of the
evidence through [the testimony and documentation presented by them],
which the court found to be credible (see CPL 400.30 [4]; People v
Tzitzikalakis, 8 NY3d 217, 221-222; People v Wilson, 108 AD3d 1011,
1013-1014)” (People v Perez, 130 AD3d 1496, 1497). The court
explicitly chose not to credit the testimony and documentation of
defendant. “[W]e perceive no basis in the record for us to substitute
our credibility determinations for those of the court, which had ‘the
advantage of observing the witnesses and [was] in a better position to
judge veracity than an appellate court’ (People v Dolan, 155 AD2d 867,
868, lv denied 75 NY2d 812)” (Perez, 130 AD3d at 1497).

     Contrary to defendant’s contention, the court did not err in
imposing a collection surcharge of 10% of the amount of restitution
(see People v Robinson, 112 AD3d 1349, 1350, lv denied 23 NY3d 1042;
see also Penal Law § 60.27 [8]). We conclude, however, that the
restitution award cannot be sustained insofar as the court awarded the
victim $10,000 as opposed to $7,522.50 for the forensic accountant’s
fee. The testimony at the restitution hearing established that the
total bill from the accounting firm as of the date of hearing was
$7,500, plus a $22.50 finance charge. Although the forensic
accountant testified that such bill did not include his fee for
testifying, the record contains no quantification of that additional
part of the fee, and thus there is no record basis for the $10,000
figure awarded by the court. We conclude that the restitution award
must be reduced by $2,477.50, and we modify the judgment accordingly.
We note that the dollar amount of the 10% restitution surcharge must
be reduced accordingly, by $247.75.




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
