Opinion
November 3, 1994
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
Defendant's complaint regarding the manner in which the amount of restitution was determined has not been preserved for review (People v. Callahan, 80 N.Y.2d 273, 281), and we decline to reach it in the interest of justice. In any event, we would find that since both defendant and his counsel consented to the restitution ordered, the court did not err in refusing to conduct a hearing pursuant to Penal Law § 60.27 (2), or in relying upon figures recited in two letters from the victim (People v. Lugo, 191 A.D.2d 648). Defendant's extensive experience in numismatics, and his position as a generous benefactor of his victim, provided him with an unparalleled understanding of the "tangible and intangible" damages which resulted from his theft of numerous coins from his victim.
As the People concede, defendant was improperly sentenced to community service. Since defendant's consent could not be inferred from earlier plea negotiations, and the court's authority was limited to resentencing him only with respect to the fine which it had imposed (People v. Yannicelli, 40 N.Y.2d 598, 602), the matter is remanded to the Supreme Court for resentencing.
Concur — Ellerin, J.P., Rubin, Nardelli and Williams, JJ.