Opinion
No. 2013–0729.
05-22-2015
PEOPLE of the State of New York, v. Lori A. DILORENZO–PURNER, Defendant.
Opinion
At the request of the above-named defendant, a restitution hearing was held in this Court on May 21, 2015, and based on the credible testimony and evidence submitted at the restitution hearing, this Court finds as follows.
PROCEDURAL BACKGROUND
On January 10, 2014, the defendant was charged with the crimes of Criminal Trespass 2d Degree [Penal Law § 140.15 ] for knowingly and unlawfully entering and remaining in the residence of Sherry c. Bapp and her daughter, Ashtin T. Bapp, located at 19 Third Street, Glens Falls, New York and Criminal Mischief 4th Degree [Penal Law § 145.00 ] for recklessly driving her vehicle into and damaging property belonging to Sherry C. Bapp, including a small plastic pool, an inflatable pool and a support post connected to the Bapp Residence.
By letter dated October 23, 2013[sic], from Joy Savoie, Crime Victim Specialist, Warren County District Attorney's Office, to William Montgomery, Esq., counsel for the defendant, the defendant was given written notice [prior to her guilty plea] that the victim was seeking damages to the support post in the amount of $1386.45, together with an October 14, 2014 written estimate signed by Ms. Bapp supporting her claim. The October 14, 2014 estimate failed to identify the person or company that provided the estimate to Ms. Bapp.
The letter and October 14, 2014 estimate for repairs were admitted into evidence by defense counsel as Defendant's Exhibit F.
On October 31, 2014, the defendant entered a plea of guilty to Trespass (Penal Law § 140.00 ) in satisfaction of the Criminal Trespass 2d Degree charge and to Disorderly Conduct (Penal Law § 240 .20) in satisfaction of the Criminal Mischief 4th Degree charge. On October 31, 2014, the defendant was sentenced to a one-year conditional discharge, and ordered to pay restitution for any and all damages caused by the defendant at the Bapp Residence. The defendant reserved her rights to a restitution hearing.
By a letter dated January 30, 2015, from Joy Savoie, Crime Victim Specialist, to William Montgomery, Esq., the People notified the defendant that the victim was seeking $1935.00 for the repairs to her support post. This letter included a written estimate from R. & J. Kerr, Inc.
The Kerr Estimate was introduced into evidence as People's Exhibit 1. This Court takes judicial notice of the prior proceedings in this case, which includes the January 30, 2015 letter of Ms. Savoie.
By letter dated March 24, 2015 from William Montgomery, Esq., to this Court, the defendant requested a restitution hearing. A hearing was granted and was conducted by this Court on May 21, 2015. The People called Ronald Kerr, owner of R. & J. Kerr, Inc., an industrial maintenance company, and Sherry Bapp, to testify. The Defendant presented testimony of Gary Tucker, a general contractor, Angela Dean, a friend of the Defendant and Ms. Bapp's prior tenant. The Defendant also testified on her own behalf.
The hearing was originally scheduled by this Court for April 24, 2015, but adjourned at the request of the Defendant to May 21, 2015.
Upon a careful review of the documentary evidence and the testimony of the respective witnesses, together with the opportunity to assess demeanor, conduct and the credibility of each witness, this Court finds that the following are the credible facts.
FINDINGS OF FACT
Sherry C. Bapp is the owner of the premises located at 19 Third Street, Glens Falls, New York (hereinafter the “Bapp Residence”), together with her estranged husband, James Bapp. Ms. Bapp testified credibly that, on the morning of July 21, 2013, when she left her residence for work, her supporting post was in an undamaged condition. Later that evening, she received a telephone call from her daughter, Ashtin T. Bapp, stating that someone had just driven through her yard causing damage, and the police had been called. Upon arriving home, Ms. Bapp found that a supporting post attached to her house was sheared off at the base. The fact that Ms. Bapp's support post was sheared off at the base was confirmed by the testimony of Gary Tucker, who testified that the post had been split with part of the post remaining in the ground. The broken post supports, in combination with other support posts, a portion of the second floor structure. After the support post was broken, it could be moved easily by hand, and was no longer providing any support of the second floor. There was no evidence that the second floor had become unlevel or otherwise suffered damage.
Defense called Angela Dean, who testified that Ms. Bapp did not reside at the Bapp Residence on July 21, 2013 and that the support post was never damaged by the defendant. Based on the content of Ms. Dean's testimony and her demeanor, appearance and conduct during her testimony, this Court finds Ms. Dean's testimony not to be credible.
The Defendant testified that she never hit Ms. Bapp's support post, but this Court finds this testimony to not be credible.
With respect to the damages suffered by Ms. Bapp, the People introduced the expert testimony of Ronald Kerr, owner of R. & J. Kerr, Inc. Mr. Kerr prepares approximately 200 construction estimates per year, including both industrial and residential, but his business primarily engages in industrial and commercial construction. Mr. Kerr received a request to prepare an estimate for the repairs to the Bapp Residence from Ms. Bapp's fiancé, with whom he is friends. Mr. Kerr initially created an estimate based on the verbal description of the damage from Ms. Bapp's fiancé. In April of 2015, he inspected the damage and confirmed his prior written estimate. Mr. Kerr testified that a repair of the support post would require a temporary shoring of the 2nd floor landing; removal of the damaged 4? x 4? post; hand excavation and removal of the concrete foundation; installation of a new concrete foundation [sono-tube] for a new post; and installation of a new 4? x 4? post with anchors. The entire job would take 16 man-hours (2 men working for 8 hours), together with a return to the work site the next day to remove the temporary supports. Mr. Kerr confirmed that he did not dig below the post to confirm that the post had a concrete foundation, or that the foundation was damaged. Ms. Bapp testified that it was her understanding that the supporting post did have a concrete base. Mr. Kerr testified that the total cost of repair would be $1,935.00, exclusive of taxes.
The Defendant asserted that Mr. Kerr's credibility was questionable, because he testified that he met Ms. Bapp for the first time just before the hearing, when Ms. Bapp testified that she and Mr. Kerr attended the same school, but in different grades, and that she was “generally aware” of Mr. Kerr and that she recalled meeting Mr. Kerr, on one prior occasion, with her fiancé at a bar several months earlier. The Court does not find that the difference in the recollection of Ms. Bapp and Mr. Kerr, concerning whether they met on one prior occasion, creates any concerns regarding Mr. Kerr or Ms. Bapp's credibility.
In rebuttal, the Defendant introduced the expert testimony of Gary Tucker, owner of Gary Tucker Enterprises, a general contractor with approximately 23 years of experience. Mr. Tucker inspected the Bapp property on the day before the hearing. Mr. Tucker confirmed that the support post had significant rot at the base of the post. Mr. Tucker confirmed that the broken post, as constructed, was probably intended to support a portion of the 2nd floor of the Bapp Residence. In its present broken condition, the post was providing no support to the second floor. Mr. Tucker attempted to hand dig, approximately 6?–8? to find the cement foundation, but he was unable to feel a cement foundation. However, Mr. Tucker testified that he was unable to dig deep enough to find the bottom of the broken piece of the support post, which was still in the ground. So, he was unable to confirm whether the support post had a concrete foundation and, if so, whether the foundation was damaged.
According to Mr. Tucker, the support post could be repaired at a cost of $175.00 to replace the 4? x 4?, without any cement foundation work. Mr. Tucker testified that if the cement foundation existed and was not damaged, it could be reused. If a cement foundation was found to have been damaged, then the cost of repair, which included the same work described by Mr. Kerr, would cost an additional $200.00, for a total estimated project cost of $375.00. Mr. Tucker testified that, even if a cement foundation needed to be excavated and replaced with a sono-tube cement foundation, the entire project would only take 1–2 total man-hours, at a cost of $50 .00 per hour.
Defense also introduced into evidence a letter dated October 23, 2013 [sic], from Joy Savoie, Crime Victim Specialist, Warren County District Attorney's Office, together with an undated estimate signed as accepted by Ms. Bapp [Defendant's Exhibit F]. Defendant's Exhibit “F” estimates the total cost of repairs to the Bapp Residence, including excavation, removal and replacement of the concrete footing, to cost $1386.45. Defendant's Exhibit “F” provides a cost breakdown of each separate item of repair, including removal of the damaged structure [$95.00], excavation of the concrete footing [$425 .00], soil compaction [$105.00], pouring of a new concrete footing [$135.00], installation of the new post [$105.00] and painting of the post [$85.00], together with cost of obtaining permits [$220.00]; overhead and profit of 10% [$117.00] and tax [$99.45].
Defendant's Exhibit “F” containing the estimate signed by Ms. Bapp was received into evidence, over the People's objection, pursuant to CPL § 440.30(4), which allows the introduction of any relevant evidence. Clearly, an estimate signed by the victim constitutes some relevant evidence of the value of her loss, and the People's objection goes to the weight of the evidence.
CONCLUSIONS OF LAW
The purpose of reparation is to make the victim of a crime whole, whereas the purpose of restitution is to return or restore the “fruits” of the offense. Penal Law §§ 60.27, 65.10. See also: People v. Tzitzikalakis, 8 NY3d 217, 864 N.E.2d 44 (2007). When the sentencing court orders reparation or restitution, the court must be careful “to prevent the victim from enjoying an unjust enrichment, and the defendant from suffering under an unduly harsh and unreasonable restitution order.” Tzitzikalakis, 8 NY3d 217, 221, quoting, Mem. of Attorney General, Bill Jacket, L.1992, ch. 618, at 25.
While restitution and reparation technically have different meanings, they are both often generically referred to as “restitution” by the sentencing courts.
In a case where guilt is established pursuant to a plea agreement rather than a trial, evidence to support the restitution amount generally can only be found in the agreement itself or the minutes of the plea allocution. People v. Consalvo, 89 N.Y.2d 140, 144, 674 N.E.2d 672 (1996). While “a defendant may make a statement at the plea proceedings sufficient to support a determination of the victim's out-of-pocket loss, thereby eliminating the procedures set forth in the Criminal Procedure Law, in most cases the court will be unable to determine the amount of restitution from the plea record. ” Id. at 144 (emphasis added). If restitution is appropriate, but cannot be determined the amount at the time of the plea, then a restitution hearing is required. Id. at 145.
Thus, where the court is unable to make a finding as to the actual out-of-pocket loss based on the record before it, or if the defendant so requests, the court must conduct a hearing in accordance with the procedure set forth in CPL 400.30. (Penal Law § 60.27[2] )(emphasis added). CPL 400.30(4) provides:
“At any hearing held pursuant to this section the burden of proof rests upon the people. A finding as to the amount of the defendant's gain from the commission of the offense must be based upon a preponderance of the evidence. Any relevant evidence, not legally privileged, may be received regardless of its admissibility under the exclusionary rules of evidence.”
During the hearing, the People have the burden of proving the victims' out-of-pocket losses, or the amount necessary to make the victim whole, by a preponderance of the evidence. People v. Tzitzikalakis, 8 NY3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44 (2007) ; People v. Tuper, 125 AD3d 1062, 2 N.Y.S.3d 700 (3d Dept.2015) ; People v. Stevens, 84 AD3d 1424, 1427, 922 N.Y.S.2d 596 (2011), lv. denied, 17 NY3d 822, 929 N.Y.S.2d 811, 954 N.E.2d 102 (2011).
Furthermore, “[a]ny relevant evidence is admissible unless privileged regardless of its admissibility under the rules of evidence. ” CPL 400.30(4) (emphasis added). See also: People v. Tuper, 125 AD3d 1062, 2 N.Y.S.3d 700 (3d Dept.2015), citing, People v. Consalvo, 89 N.Y.2d 140, 145, 651 N.Y.S.2d 963, 674 N.E.2d 672 (1996) ; accord, People v. Stevens, 84 AD3d at 1427, 922 N.Y.S.2d 596 (2011).
The People can met their burden by offering testimony of the victim as to the value of the lost or stolen property (People v. Tzitzikalakis, 8 NY3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44 [2007] ); by introduction of bills, estimates or other proof of loss (People v. Ashley, 162 A.D.2d 883, 558 N.Y.S.2d 646 [3d Dept.1990] ); by the introduction of a statistical analysis of the losses (People v. Consalvo, 89 N.Y.2d 140, 674 N.E.2d 672 [1996] ); or by expert testimony (People v. Tzitzikalakis, 25 AD3d 404, 409, 807 N.Y.S.2d 360 [1st Dept.2006] ).
However, expert testimony is not necessary, where the losses can be confirmed by other relevant evidence. People v. Ford, 77 AD3d 1176, 1177, 910 N.Y.S.2d 235 (3d Dept.2010) (Expert testimony was not required to establish the value of the victim's antiques, household furnishings, and other property, where the victim, an antique collector with an academic background in decorative arts, testified that she determined the value of the missing and damaged items by comparing them to similar items in catalogues, antique stores, and online markets, and by consulting antique dealers).
In the present case, the People have proven, by a preponderance of the evidence, that the Defendant damaged the support post at the Bapp Residence. However, the People have failed to prove that the cement foundation was damaged or needs to be repaired or replaced as a result of the Defendant's conduct. In fact, the People's expert, Mr. Kerr made no attempt to inspect the cement foundation, and could not testify as to its condition. The Defendant's expert, Mr. Tucker, attempted to hand dig down to the cement foundation, but was unable to reach the bottom of the support post or to the cement foundation.
This Court does credit the testimony of Mr. Tucker that, in the event that the cement post is undamaged, then the new post could be affixed to the existing post, and excavation of any cement footing would not be necessary. In addition, both experts testified that the existing post had significant rot at its base, making it more likely that the support post could be broken by the Defendant's vehicle without any damage to the cement foundation.
Based on the testimony presented in this case, if this Court granted the victims reparation in the amount of $1935.00, which includes the cost of excavation, removal and replacement of the cement foundation, without any proof that the cement foundation is damaged or needs to be replaced, then the victim would be unjustly enriched.
Mr. Kerr provided no breakdown of the cost to repair and replace the structural post, without replacing the cement footing. The only testimony and evidence of the cost to repair and replace the structural post, without replacing the cement footing, came from Mr. Tucker and Defendant's Exhibit “F.” This Court credits Mr. Tucker's testimony that the Bapps' support post can be replaced at a cost of $175.00. James Bapp and Sherry Bapp are, therefore, awarded reparation in the amount of $175.00.
Defendant's Exhibit “F” provides a breakdown of the replacement of the support post, without replacement of the cement footing of $285.00, exclusive of permitting, taxes and overhead and profit. There was no testimony by either Mr. Kerr or Mr. Tucker concerning the need for permits. In any event, the victim is entitled to be made whole, and the granting of the lower estimate would make the victim whole.
However, this Court retains jurisdiction, according to Criminal Procedure Law § 410.20(1) to “modify or enlarge the conditions of a sentence of probation or conditional discharge at any time prior to the expiration or termination of the period of sentence.” In the event that the actual cost of the repairs to the support post exceeds the estimated cost of repairs, then this Court may modify this order, upon submission of sufficient proof, to insure that the victims are made whole for the total cost of the repair of their support post.
The victims' claims for the damage to the small plastic pool and the inflatable pool are dismiss, since the People introduced no evidence of the damages or losses.
Based on the foregoing, it is ORDERED that the above-named Defendant, Lori Ann DiLorenzo–Purner, shall pay restitution in favor of the victims, James Bapp and Sherry C. Bapp, being the owners of 19 Third Street, Glens Falls, New York, in the amount of $175.00, through the Warren County Probation Department, together with applicable fees of ten (10%) percent in the amount of $17.50, for a total amount of restitution and applicable fees in the amount of $192.50 and said amount shall be paid in a lump sum on or before June 5, 2015.