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

1135
KA 11-01037
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JASON LAWSON, DEFENDANT-APPELLANT.
(APPEAL NO. 7.)


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Jeffrey R.
Merrill, A.J.), rendered October 5, 2010. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by vacating the amount of restitution ordered
and as modified the judgment is affirmed, and the matter is remitted
to Onondaga County Court for further proceedings in accordance with
the following Memorandum: In these consolidated appeals, defendant
appeals from judgments convicting him upon his pleas of guilty of
eight counts of burglary in the third degree (Penal Law § 140.20) and
two counts of criminal mischief in the second degree (§ 145.10).

     We note as an initial matter that, contrary to the People’s
contention, defendant’s “purported waiver of the right to appeal is
not valid inasmuch as County Court failed to obtain a knowing and
voluntary waiver of that right at the time of the plea, and instead
obtained the purported waiver at sentencing” (People v Pieper, 104
AD3d 1225, 1225; see generally People v Lopez, 6 NY3d 248, 256).

     Defendant contends in appeal No. 7, inter alia, that the
restitution portion of the sentence is illegal because the named
victim does not qualify under the statute (see Penal Law § 60.27 [4]
[b]), and that such contention does not require preservation. We
agree with defendant that preservation is not required with respect to
that contention (see People v McCarthy, 83 AD3d 1533, 1534-1535, lv
denied 17 NY3d 819), but we conclude that it lacks merit (see § 60.27
[4] [b]).

     We conclude that, to the extent that defendant contends that the
amount of restitution ordered by the court is not supported by the
                                 -2-                          1135
                                                         KA 11-01037

record “[his] claim is not properly before this Court for review
because [he] did not request a hearing to determine the [proper amount
of restitution] or otherwise challenge the amount of the restitution
order[] during the sentencing proceeding” (People v Butler, 70 AD3d
1509, 1510, lv denied 14 NY3d 886 [internal quotation marks omitted];
see People v Horne, 97 NY2d 404, 414 n 3; People v Jones, 108 AD3d
1206, 1207, lv denied 22 NY3d 997; People v Kirkland, 105 AD3d 1337,
1338, lv denied 21 NY3d 1043). We nevertheless exercise our power to
review defendant’s contention as a matter of discretion in the
interest of justice (see CPL 470.15 [3] [c]). We agree with defendant
that the record “does not contain sufficient evidence to establish the
amount [of restitution to be imposed],” and that the court therefore
“erred in determining the amount of restitution without holding a
hearing” (People v Wright, 288 AD2d 899, 900, lv denied 97 NY2d 689).
We therefore modify the judgment in appeal No. 7 by vacating the
amount of restitution ordered, and we remit the matter to County Court
for a hearing to determine the amount of restitution to be paid by
defendant.

     Finally, we note that the order of restitution was entered under
the judgment in appeal No. 7 only, and that the uniform sentence and
commitment sheets in each of the other appeals merely recite that
restitution was ordered but “[n]ot [p]aid.” The uniform sentence and
commitment sheet in appeal No. 10, however, erroneously recites that
restitution was ordered in connection with the judgment giving rise to
that appeal. That uniform sentence and commitment sheet therefore
must be amended by deleting the restitution amount therefrom, while
retaining the “[n]ot [p]aid” designation (see People v Deschaine, 116
AD3d 1303, 1304, lv denied 23 NY3d 1019; see generally People v
Martinez, 37 AD3d 1099, 1100, lv denied 8 NY3d 947). In light of our
determination, we need not address defendant’s remaining contentions.




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
