Opinion
11-02-2016
The PEOPLE, etc., respondent, v. Eric G. MARTINEZ, appellant.
Philip H. Schnabel, Chester, N.Y., for appellant. David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz of counsel), for respondent.
Philip H. Schnabel, Chester, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth L. Schulz of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered March 23, 2015, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence, including restitution in the sum of $73,000, plus a surcharge in the sum of $7,300. ORDERED that the judgment is modified, on the law, by vacating the provisions thereof directing the defendant to make restitution in the sum of $73,000, plus a surcharge in the sum of $7,300; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for a hearing and new determination concerning the proper amounts of restitution and surcharge, and the manner of payment thereof.
The County Court erred in summarily ordering restitution in the sum of $73,000 absent a proper factual record from which the amount of medical expenses actually incurred by the injured victim could be inferred (see Penal Law § 60.27[5][a], [b] ; People v. Consalvo, 89 N.Y.2d 140, 651 N.Y.S.2d 963, 674 N.E.2d 672 ; People v. Fuller, 57 N.Y.2d 152, 158–159, 455 N.Y.S.2d 253, 441 N.E.2d 563 ; People v. Rodriguez, 73 A.D.3d 815, 817, 900 N.Y.S.2d 402 ; People v. Vella, 176 A.D.2d 768, 574 N.Y.S.2d 825 ). Contrary to the People's contention, the defendant's argument that the restitution order was not lawfully imposed is not subject to the preservation rule (see People v. Samms, 95 N.Y.2d 52, 56–57, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ; People v. Fuller, 57 N.Y.2d at 156, 455 N.Y.S.2d 253, 441 N.E.2d 563 ; People v. Vella, 176 A.D.2d 768, 574 N.Y.S.2d 825 ; cf. People v. Horne, 97 N.Y.2d 404, 740 N.Y.S.2d 675, 767 N.E.2d 132 ; People v. Callahan, 80 N.Y.2d 273, 280–281, 590 N.Y.S.2d 46, 604 N.E.2d 108 ). Nor is such a challenge foreclosed by the defendant's appeal waiver (see People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Casiano, 8 A.D.3d 761, 762, 779 N.Y.S.2d 259 ). Accordingly, so much of the judgment as directed the defendant to make restitution must be vacated and the matter remitted to the sentencing court for a hearing and a new determination as to whether the defendant should be required to make restitution and, if so, the proper amount and the manner of payment (see People v. Rodriguez, 73 A.D.3d at 817, 900 N.Y.S.2d 402 ; People v. Vella, 176 A.D.2d 768, 574 N.Y.S.2d 825 ; People v. Kronenberg, 167 A.D.2d 483, 484, 562 N.Y.S.2d 154 ; People v. Barnes, 135 A.D.2d 825, 826, 522 N.Y.S.2d 930 ).
Moreover, the County Court erred in imposing a surcharge in excess of five percent of the entire amount of restitution, as the record contains no affidavit from the official or organization responsible for collecting the surcharge demonstrating that the actual cost of collection and administration will exceed five percent (see Penal Law § 60.27[8] ; People v. Perez, 130 A.D.3d 1496, 1497, 14 N.Y.S.3d 246 ; People v. Stachnik, 101 A.D.3d 1590, 1592, 956 N.Y.S.2d 777 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions either are without merit or need not be addressed in light of our determination.
DILLON, J.P., ROMAN, HINDS–RADIX and CONNOLLY, JJ., concur.