SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
99
KA 11-01945
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BRENT NELSON, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Jeffrey R.
Merrill, A.J.), rendered September 20, 2011. The judgment convicted
defendant, upon his plea of guilty, of burglary in the third degree
and grand larceny in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by vacating the amount of restitution ordered
and as modified the judgment is affirmed, and the matter is remitted
to Onondaga County Court for further proceedings in accordance with
the following memorandum: Defendant appeals from a judgment
convicting him, upon his plea of guilty, of burglary in the third
degree (Penal Law § 140.20) and grand larceny in the fourth degree (§
155.30 [5]). Contrary to defendant’s contention, we conclude that the
incarceration component of the sentence is not unduly harsh or severe.
Although defendant’s contention with respect to the restitution
component of the sentence is not properly before us (see People v
Lawson [appeal No. 7], ___ AD3d ___, ___ [Jan. 2, 2015]; see generally
People v Callahan, 80 NY2d 273, 281), we nevertheless exercise our
power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [3] [c]). Upon that review, we
agree with defendant that “the record ‘does not contain sufficient
evidence to establish the amount [of restitution to be imposed]’ ”
(Lawson, ___ AD3d at ___). We thus conclude that County Court
“ ‘erred in determining the amount of restitution without holding a
hearing’ ” (id.). We therefore modify the judgment by vacating the
amount of restitution ordered, and we remit the matter to County Court
for a hearing to determine the amount of restitution to be paid by
defendant.
Entered: February 13, 2015 Frances E. Cafarell
Clerk of the Court