Opinion
February 11, 1999
Appeal from the County Court of Columbia County (Leaman, J.).
Defendant pleaded guilty to the crimes of grand larceny in the second degree and forgery in the second degree and was sentenced to five years' probation with payment of restitution in the amount of $71,000. Defendant was subsequently charged with violating the terms of his probation by failing on eight occasions to make required monthly restitution payments. Following defendant's offer to now make restitution at a reduced monthly rate, County Court scheduled a hearing to consider evidence of the circumstances surrounding defendant's nonpayment. At the commencement of that hearing, defendant admitted the charges and acknowledged that, upon resentencing, the court was authorized to revoke his probation and impose a term of imprisonment. County Court thereafter revoked defendant's probation and sentenced him to a prison term of 2 1/3 to 7 years with continued payment of restitution. Defendant appeals.
We affirm. We reject defendant's contention that County Court erred in revoking his probation without further inquiry regarding his ability and efforts to pay restitution. A review of the record discloses that no further inquiry was needed. Following the plea allocution, County Court expressly invited defendant to submit evidence explaining the facts underlying his nonpayment but defendant declined the offer. Moreover, prior to imposing sentence the court reviewed an updated probation report detailing defendant's financial and employment status as well as his reasons for failing to make the required payments. Having sufficiently developed the facts regarding defendant's ability to render restitution, County Court had the discretion to determine whether defendant's admitted violation warranted revocation of his probation ( see generally, People v. McCloud, 205 A.D.2d 1024, lv denied 86 N.Y.2d 738; People v. Forman, 105 A.D.2d 984). From the circumstances presented here, it cannot fairly be concluded that County Court abused its discretion in revoking defendant's probation and imposing a term of imprisonment ( see, People v. Battaglia, 179 A.D.2d 841, lv denied 79 N.Y.2d 943; People v. Wojcieszek, 140 A.D.2d 972; People v. Forman, supra, at 984-985).
Similarly, unpersuasive is defendant's claim that he is being unconstitutionally imprisoned for his indigence ( see, Bearden v. Georgia, 461 U.S. 660). As we have noted in a similar case, the defendant "[h]aving received the benefit of his bargain, defendant should be bound by its terms" (People v. Felman, 141 A.D.2d 889, 890). Moreover, the sentencing, court may take into account the defendant's ability to make restitution in tailoring the sentence ( see, Bearden v. Georgia, supra). In the matter at hand, a paramount condition of defendant's probation was that he make restitution; his failure to abide by this condition does not render his revocation unconstitutional ( see, People v. Felman, supra).
Mikoll, J. P., Crew III, Peters and Graffeo, JJ., concur.
Ordered that the judgment is affirmed.