Opinion
January 31, 1992
Appeal from the Supreme Court, Erie County, Forma, J.
Present — Denman, P.J., Pine, Balio, Lawton and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, and matter remitted to Supreme Court for further proceedings, in accordance with the following Memorandum: The court did not err in refusing defendant's request for a mistrial. That request was made after a police officer testified on direct examination that, when he arrested defendant and asked whether he understood his Miranda warnings, defendant responded, "Yes. I have been arrested before". In response to defense counsel's objection, the court struck the statement from the record and twice instructed the jury to disregard it. In our view, the court acted promptly and forcefully to alleviate whatever prejudice may have resulted from the police officer's gratuitous statement (see, People v. Young, 48 N.Y.2d 995; People v. Nagi, 153 A.D.2d 964; People v. Celeste, 95 A.D.2d 961; People v. Patterson, 83 A.D.2d 691).
The court did err, however, by ordering restitution in the amount of $110 without conducting a hearing. Because the record does not contain sufficient evidence to determine the proper amount of restitution, the matter must be remitted for a hearing (Penal Law § 60.27; see, People v. Fuller, 57 N.Y.2d 152, 158-159; People v. Ramirez, 98 A.D.2d 985; People v. Clougher, 95 A.D.2d 860). The colloquy between the sentencing court and defense counsel was insufficient to establish the victim's monetary loss (cf., People v. Kelsky, 144 A.D.2d 386, 387, lv denied 73 N.Y.2d 787). Accordingly, the matter is remitted for a hearing to determine the amount of restitution owed by defendant (see, People v. Ramirez, supra; People v. Clougher, supra; People v Thigpen, 60 A.D.2d 860).