Opinion
May 7, 1979
Appeal by defendant from (1) a judgment of the County Court, Suffolk County, rendered October 31, 1977, convicting her of attempted grand larceny in the third degree, upon her plea of guilty, and imposing a sentence of three years' probation and a $16,000 fine, and (2) a sentence of the same court, imposed September 19, 1978, which ordered her incarceration, until such time as the aforesaid fine be paid, for a period not to exceed four months. Judgment rendered October 31, 1977, affirmed. Sentence imposed September 19, 1978, reversed, on the law, and case remitted to the County Court for further proceedings consistent herewith. When defendant moved, subsequent to the imposition of the fine, to be relieved of said fine, the court should not have denied her relief without holding a hearing to ascertain the truthfulness of her claimed inability to pay, and without making a determination of how much, if any, of the fine she could pay (see People v. Sherman, 35 N.Y.2d 931, revg 43 A.D.2d 575 on the dissenting opn of Shapiro, J.). While it appears that defendant owns certain real property, the liquidation or mortgaging of which could conceivably be applied in satisfaction of the fine, the record is silent as to the value of the property. Indeed, the County Court expressly stated, at the conclusion of a hearing held pursuant to subdivision 3 of section 80.00 and subdivision 5 of section 80.05 Penal of the Penal Law, prior to the imposition of the fine, that it was unable to determine the amount of defendant's "gain" attributable to her concealed ownership of these properties, because "there has been no proof adduced * * * as to the value of the real property." Accordingly, the case is remitted for a hearing to determine the amount of the fine, if any, that defendant is able to pay. In making such a determination, the court should make findings as to (a) what property, if any, is owned by defendant, and (b) defendant's equity in any such property. Lazer, J.P., Gulotta, Cohalan and Margett, JJ., concur.