Opinion
99-03952, 00-01537
Argued May 3, 2002
May 28, 2002.
Appeal by the defendant from (1) a judgment of the County Court, Westchester County (Perone, J.), rendered March 18, 1999, convicting him of grand larceny in the second degree, grand larceny in the third degree (three counts), insurance fraud in the fourth degree, scheme to defraud in the first degree, and falsifying business records in the first degree (four counts), upon his plea of guilty, and imposing sentence, and (2) an order of the same court, entered December 16, 1999, which, without a hearing, amended the sentence and directed the defendant to pay restitution in the total amount of $264,665.58, and a surcharge of 5%.
Raymond E. Kerno, Mineola, N.Y., for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Valerie A. Livingston and Richard Longworth Hecht of counsel), for respondent.
MYRIAM J. ALTMAN, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed; and it is further,
ORDERED that the order is reversed, on the law, and the matter is remitted to the County Court, Westchester County, for a hearing on the issue of restitution.
Upon our review of the factors set forth in People v. Taranovich ( 37 N.Y.2d 442), we conclude that the defendant's right to a speedy trial was not violated (see People v. Balken, 269 A.D.2d 534; People v. Woodard, 234 A.D.2d 613, appeal denied 89 N.Y.2d 989, cert denied 520 U.S. 1266).
Moreover, since the defendant pleaded guilty with the understanding that he would receive the sentence which was thereafter actually imposed, he has no basis to now complain that his sentence was excessive (see People v. Brown, 287 A.D.2d 464, lv denied 97 N.Y.2d 679; People v. Fontana, 267 A.D.2d 398). In any event, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
However, since the defendant specifically requested a hearing on the issue of restitution, the County Court erred in determining the amount of restitution without a hearing (see Penal Law § 60.27).
The defendant's remaining contentions were waived upon his plea of guilty to the entire indictment (see People v. O'Brien, 56 N.Y.2d 1009; People v. Gerber, 182 A.D.2d 252).
ALTMAN, J.P., S. MILLER, McGINITY and SCHMIDT, JJ., concur.