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People v. Welsher

154 A.D.2d 915 Court N.Y. App. Div. Decision date 1989-10-06 English

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The People of the State of New York, Respondent, v James Welsher, Appellant.

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty to one count of attempted robbery, third degree. He was sentenced as a second felony offender to serve an indeterminate sentence of 1 Vi to 3 years and to make $900 restitution to the victim over a five-year period. Defendant’s sole claim on appeal is that the restitution provision of his sentence should be vacated because the court erred in ordering restitution without conducting a hearing to determine the amount.

Defendant is entitled to a hearing on the issue of the amount of restitution if the record before the sentencing court

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is insufficient to allow that court to make such a finding (see, People v Fuller, 57 NY2d 152 , 156; People v Dixon, 134 AD2d 877 , 878; People v Sommer, 105 AD2d 1052 , 1053; People v Clougher, 95 AD2d 860 ). Furthermore, the court may not abdicate its responsibility to fix the amount of restitution to any other agency (People v Fuller, supra, at 158 ; People v Miller, 133 AD2d 784 , lv denied 70 NY2d 934 ) or to the District Attorney (People v Dixon, supra, at 878 ) or base a finding solely upon the presentence report (see, People v Cheatum, 148 AD2d 986 , lv denied 74 NY2d 662 ; People v Dixon, supra).

In this case a hearing was not necessary because the record was sufficient to allow the court to make a finding “as to the fruits of the offense” (Penal Law § 60.27 [2]). It is apparent that the court based its finding that the fruits of the crime amounted to $900 from the entire record, which included the victim’s sworn statement to this effect. (Appeal from judgment of Supreme Court, Monroe County, Doyle, J. — attempted robbery, third degree.) Present — Callahan, J. P., Boomer, Pine, Lawton and Davis, JJ.

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