Opinion
11-19-2015
The PEOPLE of the State of New York, Respondent, v. Adam J. ROBINSON, Appellant.
Torrance L. Schmitz, Vestal, for appellant. Gwen Wilkinson, District Attorney, Ithaca (Wendy L. Franklin of counsel), for respondent.
Torrance L. Schmitz, Vestal, for appellant.
Gwen Wilkinson, District Attorney, Ithaca (Wendy L. Franklin of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, LYNCH and DEVINE, JJ.
LAHTINEN, J.P. Appeal from an order of the County Court of Tompkins County (Ames, J.), entered October 24, 2013, which set the amount of restitution owed by defendant.
Defendant pleaded guilty to criminal contempt in the first degree stemming from his violation of an order of protection entered against him and waived his right to appeal. Defendant was sentenced in accordance with the plea agreement to six months in jail and five years of probation. Defendant disputed the request for restitution and, following a hearing, County Court ordered defendant to pay restitution in the amount of $2,575.20. Defendant appeals from the order of restitution.
We affirm. Initially, we note that, although the plea agreement contemplated restitution, defendant's challenge to the restitution is not precluded by the waiver of the right to appeal inasmuch as the amount was not specified until after a hearing (see People v. Gardner, 129 A.D.3d 1386, 1386, 12 N.Y.S.3d 353 [2015] ; People v. Spears, 78 A.D.3d 1380, 1380–1381, 911 N.Y.S.2d 245 [2010] ). Furthermore, we are unpersuaded by defendant's contention that County Court abused its discretion in denying defense counsel's request for an adjournment inasmuch as the record establishes that defendant failed to appear at the hearing or maintain contact with defense counsel, despite being informed of the hearing date (see People v. Ruffin, 56 A.D.3d 892, 893, 867 N.Y.S.2d 277 [2008] ; People v. Herring, 227 A.D.2d 658, 641 N.Y.S.2d 649, 650 [1996], lv. denied 88 N.Y.2d 986, 649 N.Y.S.2d 393, 672 N.E.2d 619 [1996] ).
Turning to the merits, we find no reason to disturb the amount of restitution ordered. It is the People's burden to establish, by a preponderance of the evidence, the victim's out-of-pocket lose caused by the offense (see Penal Law § 60.27[2] ; CPL 400.30[4] ; People v. Tzitzikalakis, 8 N.Y.3d 217, 222, 832 N.Y.S.2d 120, 864 N.E.2d 44 [2007] ). Here, the employer testified that the victim was discharged from her employment because of the volatile situations caused by defendant, which resulted in police presence at her place of employment. Absent such incidents, the victim's employment would not have been terminated. Furthermore, the record establishes that the victim was hired to work 29 hours per week at a rate of $7.40 per hour and that, following her discharge, she was unable, despite her efforts, to find employment for 12 weeks. In view of the foregoing, we find no reason to disturb County Court's finding that the victim's lost wages were a direct consequence of defendant's conduct and that the restitution owed to the victim was reasonable (see People v. Stevens, 84 A.D.3d 1424, 1427, 922 N.Y.S.2d 596 [2011], lv. denied 17 N.Y.3d 822, 929 N.Y.S.2d 811, 954 N.E.2d 102 [2011] ; People v. Periard, 15 A.D.3d 693, 694, 788 N.Y.S.2d 725 [2005] ).
ORDERED that the order is affirmed.
McCARTHY, LYNCH and DEVINE, JJ., concur.