People v Vanantwerp

People v VanAntwerp 2010 NY Slip Op 08193 [78 AD3d 1532] November 12, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

The People of the State of New York, Respondent, v Jonathon A. VanAntwerp, Appellant.

—[*1] Adam H. Van Buskirk, Aurora, for defendant-appellant.

Jon E. Budelmann, District Attorney, Auburn (Brian N. Bauersfeld of counsel), for respondent.

Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered September 24, 2009. The judgment convicted defendant, upon his plea of guilty, of robbery in the second degree (two counts) and burglary in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the amount of restitution ordered and as modified the judgment is affirmed, and the matter is remitted to Cayuga County Court for a hearing to determine the amount of restitution.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of robbery in the second degree (Penal Law § 160.10 [1]) and one count of burglary in the second degree (§ 140.25 [2]). We agree with defendant that County Court erred in directing him to pay restitution without first conducting a hearing on the amount of restitution to be paid. It is not clear from the record how the court determined the amount of restitution (see People v White, 266 AD2d 831 [1999]) and, in any event, the record is insufficient to support "a finding [with respect] to the dollar amount of the fruits of the offense[s] and the actual out-of-pocket loss[es] to the victim[s]" (Penal Law § 60.27 [2]; see People v Dibble [appeal No. 2], 277 AD2d 969 [2000]). We therefore modify the judgment by vacating the amount of restitution, and we remit the matter to Cayuga County Court for a hearing to determine the amount of restitution to be paid by defendant. Present—Scudder, P.J., Martoche, Centra, Fahey and Green, JJ.