Opinion
KA 17–01085 1124
11-15-2019
The PEOPLE of the State of New York, Respondent, v. Walter C. O'CONNOR, Defendant–Appellant. (APPEAL NO. 1.)
ADAM H. VAN BUSKIRK, AUBURN, FOR DEFENDANT–APPELLANT. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
ADAM H. VAN BUSKIRK, AUBURN, FOR DEFENDANT–APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal Nos. 1 and 2, defendant appeals from judgments convicting him upon his respective pleas of guilty of grand larceny in the third degree ( Penal Law § 155.35[1] ) and attempted assault in the second degree (§§ 110.00, 120.05[2] ). In appeal No. 3, defendant appeals from an amended order that set the amount of restitution related to the conviction of grand larceny in the third degree at $7,100.
Addressing appeal No. 3 first, contrary to defendant's contention, the amount of restitution is supported by a preponderance of the evidence. It is well settled that the People have the burden at a restitution hearing to establish "the victim's out-of-pocket loss—the amount necessary to make the victim whole—by a preponderance of the evidence" ( People v. Tzitzikalakis , 8 N.Y.3d 217, 221, 832 N.Y.S.2d 120, 864 N.E.2d 44 [2007] ; see People v. Consalvo , 89 N.Y.2d 140, 145, 651 N.Y.S.2d 963, 674 N.E.2d 672 [1996] ). "Any relevant evidence, not legally privileged, may be received regardless of its admissibility under the exclusionary rules of evidence" ( CPL 400.30[4] ). Here, we conclude that County Court properly determined the amount of restitution based on defendant's admission during the plea proceedings in appeal No. 1 that he stole $7,100 from the victim (see People v. Spossey , 107 A.D.3d 1420, 1420–1421, 966 N.Y.S.2d 640 [4th Dept. 2013], lv denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [2014] ; People v. Price , 277 A.D.2d 955, 955–956, 716 N.Y.S.2d 537 [4th Dept. 2000] ); see generally People v. Connolly , 27 N.Y.3d 355, 360, 33 N.Y.S.3d 144, 52 N.E.3d 1170 [2018] ).
We reject defendant's contention in appeal No. 3 that the court abused its discretion in denying his request to substitute counsel prior to the restitution hearing. The court made the requisite "minimal inquiry" into defendant's objections concerning his attorney ( People v. Sides , 75 N.Y.2d 822, 825, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990] ), and reasonably determined that defendant had not shown good cause for substitution (see People v. Jones , 149 A.D.3d 1576, 1578, 52 N.Y.S.3d 804 [4th Dept. 2017], lv denied 29 N.Y.3d 1129, 64 N.Y.S.3d 679, 86 N.E.3d 571 [2017] ; People v. Blackwell , 129 A.D.3d 1690, 1691, 12 N.Y.S.3d 425 [4th Dept. 2015], lv denied 26 N.Y.3d 926, 17 N.Y.S.3d 89, 38 N.E.3d 835 [2015] ). We further conclude in appeal No. 3 that defendant was not deprived of effective assistance of counsel during the restitution hearing (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, in appeal Nos. 1 and 2, defendant's sentence is not unduly harsh or severe.