People v Pordy

People v Pordy 2013 NY Slip Op 08102 Decided on December 4, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 4, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
MARK C. DILLON
DANIEL D. ANGIOLILLO
CHERYL E. CHAMBERS, JJ.
2012-10312
(Ind. No. 126/09)

[*1]The People of the State of New York, respondent,

v

Steven M. Pordy, appellant.




Mark M. Baker, New York, N.Y. (Jacob Kaplan of counsel), for
appellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar
J. Yeger and Anthony R. Dellicarri
of counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from an amended judgment of the County Court, Rockland County (Nelson, J.), rendered August 13, 2012, upon remittitur from this Court for resentencing after modification (see People v Pordy, 88 AD3d 746), upon his conviction of grand larceny in the second degree, aiding or assisting in the giving of fraudulent returns (two counts), offering a false instrument for filing in the first degree (seven counts), and conspiracy in the fourth degree, upon a jury verdict.

ORDERED that the amended judgment is affirmed.

Contrary to the defendant's assertions, the sentencing court properly entered an amended order of restitution against the defendant pursuant to Penal Law § 60.27. That statute does not mandate that a sentencing court determine a defendant's ability to pay restitution where that defendant is sentenced to a term of probation (see People v Harris, 72 AD3d 1110, 1112-1113; People v Lugo, 191 AD2d 648; cf. Penal Law § 65.10[2][g]). In any event, the sentencing court considered the defendant's ability to pay in fashioning the amended order of restitution. The court based the imposed monthly restitution payments of $1,000 on certain discretionary expenses reported by the defendant. We note that if the defendant is unable to pay the restitution as ordered, he may seek resentencing (see CPL 420.10[5]; People v Harris, 72 AD3d at 1112-1113).
MASTRO, J.P., DILLON, ANGIOLILLO and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court