Wednesday, September 24, 2008

Two helpful decisions on restitition.

People v Maliszewski 2008 NY Slip Op 0223 (3/14/2008) is one decision with two good holdings regarding the imposition of restitution.

First, the Court held that

We agree with defendant that the court erred in enhancing his sentence of incarceration based upon his failure to pay restitution arising from previous convictions. "Restitution may be based only on the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty' " (People v Visser, 256 AD2d 1106, 1107, quoting Penal Law § 60.27 [4] [a]; see People v Casiano, 8 AD3d 761, 762-763; People v Diola, 299 AD2d 962, lv denied 99 NY2d 581).

Then, the Court held

In addition, defendant did not admit the amount of the burglary victim's loss, and the record is insufficient to support the court's finding with respect to the amount of restitution for that loss. The court therefore erred in failing to conduct a hearing on the issue of restitution for the burglary victim's loss, pursuant to CPL 400.30 (see People v Dibble [appeal No. 2], 277 AD2d 969, 970)
In People v Braswell 2008 NY Slip Op 02255 (3/14/2008) the Court agreed with an unpreserved claim that that the court erred in imposing restitution inasmuch as it was not part of the plea agreement and, pursuant to its interest of justice discretion, concluded that the sentencing court should have afforded defendant the opportunity to withdraw his plea before ordering him to pay restitution.

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