Opinion
2013-02-8
In the Matter of JOSHUA R.S., Respondent–Appellant. Steuben County Law Department, Petitioner–Respondent.
Robert A. Dinieri, Attorney for the Child, Clyde, for Respondent–Appellant. Alan P. Reed, County Attorney, Bath (Ruth A. Chaffee of Counsel), for Petitioner–Respondent.
Robert A. Dinieri, Attorney for the Child, Clyde, for Respondent–Appellant. Alan P. Reed, County Attorney, Bath (Ruth A. Chaffee of Counsel), for Petitioner–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from an order directing him to pay restitution in the amount of $740 for property damage and loss arising from his multiple burglaries of a single residence, respondent contends that the restitution award is not supported by the record. The restitution award is comprised of $580 for property damage and $160 for the theft of a handgun and a bottle of vodka. With one minor exception, we conclude that Family Court's restitution award is supported by a preponderance of the material and relevant evidence introduced at the dispositional hearing ( seeFamily Ct. Act § 350.3[1], [2]; Matter of Michael V., 92 A.D.3d 1115, 1116, 939 N.Y.S.2d 591,lv. denied19 N.Y.3d 804, 2012 WL 1948303).
Here, the cost to repair the damaged property was established by the testimony of its landlord and an estimate for repairs written on construction company letterhead. Furthermore, the victim testified to the model and the condition of his stolen handgun and that he had inquired at three local stores to determine the value of comparable models. Based on the detailed testimony of the witnesses and in light of the great weight accorded to the court's award ( see Matter of Andrew D., 231 A.D.2d 953, 953, 648 N.Y.S.2d 379;Matter of James A., 205 A.D.2d 621, 622, 613 N.Y.S.2d 255), we conclude that the evidence is sufficient to support the court's determination of the “fair and reasonable cost to replace the property [or] repair the damage caused by the respondent” with respect to those portions of the restitution award (Family Ct. Act § 353.6[1][a]; see Matter of Dante P., 81 A.D.3d 1267, 1268, 916 N.Y.S.2d 435;Matter of Antonio M., 214 A.D.2d 571, 571, 624 N.Y.S.2d 464).
We agree with respondent, however, that the court erred in granting restitution with respect to a $10 bottle of vodka allegedly stolen during a burglary. The theft of that bottle was not alleged in the petition and, as such, is not properly part of the restitution award ( see Matter of Jared G., 39 A.D.3d 1248, 1249, 834 N.Y.S.2d 601). We therefore modify the order by reducing the amount of restitution accordingly.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by reducing the amount of restitution to $730 and as modified the order is affirmed without costs.