(dissenting). I agree with the majority that the burden of proving offsets in a restitution hearing ought to be on the defendant (majority op at 222-223). I do not agree, however, that the Criminal Procedure Law forbids us from placing that burden where it belongs.
The factual issue the court below had to decide was “the actual out-of-pocket loss to the victim caused by the offense” (Penal Law § 60.27 [2]). The hearing to decide that issue was governed by CPL 400.30 (4), which says: “At any hearing held pursuant to this section the burden of proof rests upon the people.” I take this to mean that the People bear the burden of proof in two senses — the initial burden of producing evidence and the burden of persuasion — on the issue to be decided at the hearing, the amount of the out-of-pocket loss. (The distinction between the two burdens, both sometimes called “burden of proof,” is explained in Fisch, New York Evidence §§ 1086-1088, at 609-612 [2d ed 1977].)
*224In this case, the burden of persuasion is not in issue; the question is which side had the burden of producing evidence— not on the ultimate issue of the City’s out-of-pocket loss, but on the more specific issue of the value of the performance defendant furnished. We all agree that that burden should be on defendant, “the party best suited” to discharge it (majority op at 223), but the majority concludes, wrongly in my view, that the statute places it on the People.
The statute does place on the People the initial burden of producing evidence sufficient to establish a prima facie case on the ultimate issue: If the People fail to produce such evidence at the hearing, the issue must be decided in defendant’s favor. But that does not mean the People bear a like burden as to every narrower factual issue that could affect the outcome of the hearing. It is a basic principle that “depending upon the status of the evidence in the record at any particular time, the burden of producing evidence during the trial may shift from one party to the other and back again” (Fisch § 1088, at 611-612; see e.g. Matter of Philip M., 82 NY2d 238, 244 [1993]). A statute placing “the burden of proof’ on one party (here, the People) should not be read as repealing this principle.
To take a simple example: Suppose the People produce evidence that a defendant snatched a purse containing $20. Must the People also come forward with evidence showing that the defendant never returned any of the money? Of course not. Once the theft of $20 has been proved, the People have made a prima facie case, and if the defendant wants a finding that he returned some of the money, he must come forward with evidence showing that he did so. Placing this burden upon him does not violate the statute, but merely recognizes that, in showing the theft of $20, the People have discharged the initial burden of producing evidence that the statute places on them.
This case is fundamentally the same. The People produced evidence that defendant had obtained, through false invoices, a sum exceeding $950,000. That established the People’s prima facie case. As the hearing judge observed, the People could have stopped there and left it to defendant to produce evidence as to what, if anything, he gave New York City in return for its money. The People, acting with appropriate professionalism, went beyond this, and placed before the hearing court such information as they had about what defendant had provided, thus reducing the restitution amount to $340,143. In doing so, the People were bearing part of defendant’s burden for him; while of course *225they could not have concealed the information, they could have left the task of putting it into evidence to defendant.
The majority holds that the People had to go farther than they did — that they had to seek out and put before the court proof of all “the benefit conferred” by defendant on the City (majority op at 222). This is evidence favorable to defendant that defendant was in a better position to supply than the People were. In concluding that the statute compels this misallocation of the burden, the majority gives the statute a needlessly broad reading.
Judges Ciparick, Graffeo and Pigott concur with Chief Judge Kaye; Judge Smith dissents in a separate opinion in which Judge Read concurs; Judge Jones taking no part.
Order, insofar as appealed from, affirmed.