Opinion
112195
06-01-2023
The PEOPLE of the State of New York, Respondent, v. Brian S. DECKER, Appellant.
Teresa C. Mulliken, Harpersfield, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Nicholas S. Line of counsel), for respondent.
Teresa C. Mulliken, Harpersfield, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Nicholas S. Line of counsel), for respondent.
Before: Lynch, J.P., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.
MEMORANDUM AND ORDER
Reynolds Fitzgerald, J. Appeals (1) from a judgment of the County Court of Chemung County (Christopher P. Baker, J.), rendered August 26, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of stolen property in the fourth degree, and (2) from an order of said court, entered September 11, 2019, which set the amount of restitution owed by defendant.
Defendant was indicted and charged with one count of grand larceny in the third degree and one count of criminal possession of stolen property in the fourth degree. The charges stemmed from an incident wherein defendant was found to be in possession of a 2015 Sure–Trac dump trailer. In full satisfaction of that indictment, defendant pleaded guilty to criminal possession of stolen property in the fourth degree with the understanding that he would be sentenced to five years of probation. The plea agreement did not contain any provision for restitution. At sentencing, however, County Court advised defendant that the victim was seeking restitution and afforded defendant the opportunity to withdraw his plea. Defendant declined County Court's offer but objected to the imposition of restitution and requested a hearing. County Court sentenced defendant to five years of probation and, at the conclusion of the hearing that followed, ordered defendant to pay restitution in the amount of $9,899 (exclusive of the applicable surcharge). These appeals ensued.
Generally speaking, a defendant may not appeal from a restitution order in a criminal matter (see CPL 450.10 ). Here, however, County Court indicated at the time of sentencing that the amount of restitution to be imposed would be determined following the requested hearing. Under these circumstances, we will treat "the appealed-from restitution order as an appealable amendment to the judgment of conviction" (People v. Russo, 68 A.D.3d 1437, 1437 n. 2, 891 N.Y.S.2d 213 [3d Dept. 2009] ; see People v. Pixley, 150 A.D.3d 1555, 1555 n. 1, 56 N.Y.S.3d 578 [3d Dept. 2017], lv denied 30 N.Y.3d 952, 67 N.Y.S.3d 136, 89 N.E.3d 526 [2017] ; People v. Morrishaw, 92 A.D.3d 1088, 1088 n. 1, 937 N.Y.S.2d 763 [3d Dept. 2012], lv denied 18 N.Y.3d 996, 945 N.Y.S.2d 651, 968 N.E.2d 1007 [2012] ).
We affirm. Defendant initially contends that restitution should not have been awarded in the first instance because he did not steal the dump trailer, and the damage sustained thereto was not part of the same criminal transaction that formed the basis for his conviction of criminal possession of stolen property in the fourth degree. We disagree. Penal Law § 60.27(1) permits the trial court to "require restitution or reparation as part of the sentence imposed upon a person convicted of an offense." An offense, in turn, "shall include the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense" ( Penal Law § 60.27[4][a] ; see People v. Pixley, 150 A.D.3d 1555, 1557, 56 N.Y.S.3d 578 [3d Dept. 2017], lv denied 30 N.Y.3d 952, 67 N.Y.S.3d 136, 89 N.E.3d 526 [2017] ; People v. Sheehy, 274 A.D.2d 844, 846, 711 N.Y.S.2d 856 [3d Dept. 2000], lv denied 95 N.Y.2d 938, 721 N.Y.S.2d 615, 744 N.E.2d 151 [2000] ). "To be part of the same criminal transaction, the conduct must be ‘either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture’ " ( People v. Pixley, 150 A.D.3d at 1557–1558, 56 N.Y.S.3d 578, quoting CPL 40.10[2] ).
Given the temporal link between the theft of the dump trailer and defendant's possession thereof, as well as the circumstances under which defendant acquired the dump trailer and the damage thereto was sustained, we are satisfied that such occurrences were all part of the same criminal transaction (see People v. Sheehy, 274 A.D.2d at 845–846, 711 N.Y.S.2d 856 ). Further, despite defendant's protestations to the contrary, the record establishes that the dump trailer, which was "stuck on the side of the road" when defendant first saw it, was damaged as a result of his repeated – and initially unsuccessful – attempts to extract it. Under these circumstances, County Court properly determined that restitution was warranted.
As to the amount of restitution awarded, "the People bear the burden of proving the victim's out-of-pocket loss – the amount necessary to make the victim whole – by a preponderance of the evidence" ( People v. Stevens, 84 A.D.3d 1424, 1427, 922 N.Y.S.2d 596 [3d Dept. 2011] [internal quotation mark and citations omitted], lv denied 17 N.Y.3d 822, 929 N.Y.S.2d 811, 954 N.E.2d 102 [2011] ; see People v. Horne, 97 N.Y.2d 404, 410–411, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002] ; People v. Tuper, 125 A.D.3d 1062, 1062, 2 N.Y.S.3d 700 [3d Dept. 2015], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 629, 34 N.E.3d 380 [2015] ). In this regard, "any relevant evidence, not legally privileged, is admissible regardless of its admissibility under the exclusionary rules of evidence" ( People v. Decker, 139 A.D.3d 1113, 1118, 30 N.Y.S.3d 751 [3d Dept. 2016] [internal quotation marks, brackets and citation omitted], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ; see People v. Tuper, 125 A.D.3d at 1062, 2 N.Y.S.3d 700 ]). Here, the People offered the testimony of the victim and certain documentary evidence, including the invoice for the initial purchase of the dump trailer and estimates regarding both the cost to repair the dump trailer and the cost to replace it. Such proof, in our view, was sufficient to establish the loss incurred by a preponderance of the evidence (compare People v. Wilson, 59 A.D.3d 807, 808–809, 872 N.Y.S.2d 758 [3d Dept. 2009] ), thereby shifting the burden to defendant "to offer evidence contradicting the People's calculation" ( People v. Osborne, 161 A.D.3d 1485, 1486, 77 N.Y.S.3d 774 [3d Dept. 2018] [internal quotation marks and citation omitted]; see People v. Decker, 139 A.D.3d at 1118, 30 N.Y.S.3d 751 ). Although defendant tendered competing repair/replacement estimates, "County Court was free to credit the testimony and documentation presented by the People" ( People v. Osborne, 161 A.D.3d at 1486, 77 N.Y.S.3d 774 ), and we find that the record as a whole is sufficient to support the total amount of restitution ordered. Defendant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Lynch, J.P., Clark, Aarons and McShan, JJ., concur.
ORDERED that the judgment and the order are affirmed.